State v. Wells

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,559

STATE OF KANSAS,
Appellee,

v.

EVELYN L. WELLS,
Appellant.


SYLLABUS BY THE COURT

1.
Appellate review of an allegation of prosecutorial misconduct requires a two-step
analysis. First, an appellate court decides whether the comments were outside the wide
latitude that a prosecutor is allowed in discussing the evidence. Second, if misconduct is
found, an appellate court must determine whether the improper comments prejudiced the
jury against the defendant and denied the defendant a fair trial.

2.
The purpose of a unanimity instruction is to alleviate the possibility that a
defendant will be convicted of a crime without the jury unanimously agreeing on the
particular act that constituted the crime. This possibility arises when a defendant is
charged with a crime but the evidence presented at trial shows that the defendant
committed multiple criminal acts, any of which could constitute the charged crime. In
such a situation, a district court should instruct the jury that it has to unanimously agree
upon the particular act constituting the crime.



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3.
Misstating the law is not within the wide latitude given to prosecutors in closing
arguments.

4.
When a prosecutor makes an improper comment during closing argument, an
appellate court conducts a harmlessness inquiry, determining whether the misconduct
was so prejudicial that it denied the defendant a fair trial. Three factors are considered.
First, was the misconduct gross and flagrant? Second, was the misconduct motivated by
ill will? Third, was the evidence of such a direct and overwhelming nature that the
misconduct would likely have had little weight in a juror's mind? None of these three
factors is individually controlling.

5.
In analyzing whether a prosecutor's misconduct was gross and flagrant, an
appellate court considers whether the misconduct was repeated, was emphasized, violated
a long-standing rule, violated a clear and unequivocal rule, or violated a rule designed to
protect a constitutional right.

6.
In analyzing whether a prosecutor's misconduct was motivated by ill will, an
appellate court considers whether the misconduct was deliberate, repeated, or in apparent
indifference to a court's ruling.

7.
In determining whether the evidence was of such a direct and overwhelming
nature that the misconduct would likely have had little weight in the minds of jurors, the
State, as the party benefitting from the prosecutorial misconduct, bears the burden to
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establish beyond a reasonable doubt that the error did not affect the defendant's
substantial rights, i.e., there is no reasonable possibility the error affected the verdict.

8.
An appellate court begins its analysis of an alternative means issue by looking at
the language used in the applicable statute to determine whether the legislature intended
to establish alternative means through the use of the language at issue. Issues of statutory
interpretation and construction, including issues of whether a statute creates alternative
means, raise questions of law reviewable de novo on appeal.

9.
The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. An appellate court's first attempt to
ascertain legislative intent is through an analysis of the language employed, giving
ordinary words their ordinary meaning. If a statute is plain and unambiguous, an
appellate court does not need to speculate further about legislative intent and, likewise,
the court need not resort to canons of statutory construction or legislative history.

10.
In determining if the legislature intended to state alternative means of committing
a crime, a court must analyze whether the legislature listed two or more alternative
distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus,
and, in some statutes, causation elements. Or, did the legislature list options within a
means, that is, options that merely describe a material element or describe a factual
circumstance that would prove the element? The listing of alternative distinct, material
elements, when incorporated into an elements instruction, creates an alternative means
issue demanding super-sufficiency of the evidence. Often this intent can be discerned
from the structure of the statute. On the other hand, the legislature generally does not
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intend to create alternative means when it merely describes a material element or a
factual circumstance that would prove the crime. Such descriptions are secondary
matters—options within a means—that do not, even if included in a jury instruction, raise
a sufficiency issue that requires a court to examine whether the option is supported by
evidence.

11.
Words or phrases stated in a series and separated by the disjunctive "or" do not
establish alternative means of committing a crime if they fail to state additional and
distinct ways of committing the subject crime, that is, if they do not require proof of at
least one distinct, material element of mens rea, actus reus, or causation.

12.
K.S.A. 21-3506(a)(1) proscribes the aggravated crime of engaging in the act of
sodomy with a child who is under 14 years of age. The language and punctuation of
K.S.A. 21-3501(2) indicate that there are three general but distinct ways in which one can
complete the act of sodomy: (1) oral contact of genitalia, (2) anal penetration, and (3)
sexual acts with an animal. We note that each act described within the definition of
sodomy is separate and distinct from the other—the acts are factually different from one
another, and one act is not inclusive of the others. Furthermore, each act is separated by a
semicolon, which suggests that the legislature intended for each act to constitute a
specific means of completing the general act of sodomy.

13.
The phrase "oral contact or oral penetration of the female genitalia or oral contact
of the male genitalia" found in K.S.A. 21-3501(2) does not create two alternative means
of committing sodomy. Instead, the phrase merely gives a full description of one means
of committing sodomy—oral contact of genitalia. The distinction between female and
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male genitalia contained within the phrase is superficial and unnecessary. Orally
contacting genitalia encompasses both oral contact and oral penetration of the female
genitalia as well as oral contact of the male genitalia.

14.
A district court may exercise reasonable control over the scope of cross-
examination. A district court's decision to limit cross-examination is reviewed under an
abuse of discretion standard.

15.
Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or
unreasonable, in other words, if no reasonable person would have taken the view adopted
by the trial court; (2) is based on an error of law, in other words, if the discretion is
guided by an erroneous legal conclusion; or (3) is based on an error of fact, in other
words, if substantial competent evidence does not support a factual finding on which a
prerequisite conclusion of law or the exercise of discretion is based.

16.
K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and
material. In analyzing whether the evidence is material, the focus is on whether the fact at
issue has a legitimate and effective bearing on the decision of the case and is in dispute.
Evidence is probative if it has any tendency to prove any material fact.

17.
A claim that a defendant was deprived of his or her statutory and constitutional
right to be present during a portion of the trial raises legal questions that are subject to
unlimited review on appeal.

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18.
A criminal defendant has a constitutional and statutory right to be present at all
critical stages of his or her trial.

19.
K.S.A. 22-3405(1) provides in relevant part: "The defendant in a felony case shall
be present at the arraignment, at every stage of the trial including the impaneling of the
jury and the return of the verdict, and at the imposition of sentence, except as otherwise
provided by law." K.S.A. 22-3405(1) requires a felony defendant to be present at any
stage of the trial when the jury is in the courtroom or when the defendant's presence is
essential to a fair and just determination of a substantial issue. The statutory command of
K.S.A. 22-3405(1) is analytically and functionally identical to the requirements under the
Confrontation Clause and the Due Process Clause of the United States Constitution that a
criminal defendant be present at any critical stage of the proceedings against him or her.

20.
K.S.A. 22-3420(3) states: "After the jury has retired for deliberation, if they desire
to be informed as to any part of the law or evidence arising in the case, they may request
the officer to conduct them to the court, where the information on the point of the law
shall be given, or the evidence shall be read or exhibited to them in the presence of the
defendant, unless he voluntarily absents himself, and his counsel and after notice to the
prosecuting attorney."

21.
To ensure that a defendant's constitutional and statutory right to be present at all
critical stages of his or her trial is protected, a defendant must be present during the
court's discussion with the attorneys and ultimate decision on how to respond to a written
jury question. But there is no need that the court read the written answer it decided out
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loud to the jury in open court while the defendant is present. Simply delivering the
answer the court decided upon to the jury via written note is sufficient to satisfy the
defendant's right to be present.

22.
Cumulative error will not be found when the record fails to support the errors
raised on appeal by the defendant. A single error cannot constitute cumulative error.

23.
Jessica's Law, K.S.A. 21-4643, provides that a first-time offender convicted of
rape in violation of K.S.A. 21-3502(a)(2) or aggravated criminal sodomy in violation of
K.S.A. 21-3506(a)(1) must be sentenced to life imprisonment with a minimum term of
not less than 25 years unless the judge finds substantial and compelling reasons,
following a review of mitigating circumstances, to impose a departure. K.S.A. 21-
4643(d) provides a nonexclusive list of mitigating circumstances a district court may
consider when deciding whether to depart from the statutorily prescribed sentence. A
district court, however, is not obligated to depart simply because a mitigating factor
exists. Rather, a district court has the discretion to either grant or deny the request. In
exercising this discretion, a district court first reviews the mitigating circumstances and
then weighs those circumstances against any aggravating circumstances, ultimately
determining whether substantial and compelling reasons warrant a departure. But
Jessica's Law does not require a district court to state the reasons why it denied a
departure motion; the statute only requires the district court state on the record the
substantial and compelling reasons for why it granted a departure motion.

24.
Notwithstanding the overlap in the parole eligibility rules contained in K.S.A. 22-
3717(b)(2) and (b)(5), a defendant sentenced to an off-grid, indeterminate hard 25 life
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sentence pursuant to K.S.A. 21-4643 shall not be eligible for parole until the defendant
has served the mandatory 25 years in prison.

Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Opinion filed December 14,
2012. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Evelyn L. Wells and Reginald Stafford were separately charged and
jointly tried and convicted of various person and off-grid felony offenses involving
Wells' minor child, S.W. As a result, the facts and several issues stemming from this
appeal are identical to those appearing in State v. Stafford, No. 103,521, this day decided.

A jury found Wells guilty of two counts of rape in violation of K.S.A. 21-
3502(a)(2), an off-grid crime, one count of aggravated criminal sodomy in violation of
K.S.A. 21-3506(a)(1), an off-grid crime, and one count of aggravated endangering a child
in violation of K.S.A. 21-3608a(a)(1), a severity level 9 person felony. On appeal, Wells
argues: (1) The prosecutor committed misconduct during his closing argument by
misstating the legal meaning of the unanimity instruction given to the jury; (2) the jury
was presented with alternative means of finding Wells guilty of aggravated criminal
sodomy (oral), one of which was not supported by sufficient evidence; (3) the district
court improperly limited cross-examination of the victim, S.W.; (4) the district court, by
answering a jury question with a written note, violated Wells' constitutional right to be
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present at all critical stages of her trial; (5) cumulative error deprived Wells of a fair trial;
(6) the district court abused its discretion in denying Wells' motion requesting a departure
sentence; and (7) the district erred by setting 25 years' imprisonment as the minimum
prison term Wells must serve before becoming parole eligible. Based on the analysis
below, we find no merit to any of Wells' arguments. Accordingly, we affirm her
convictions and sentences.

FACTS

Between August 2006 and July 2007, S.W., born April 19, 2001, lived with her
mother, Wells; her stepfather, Rex; and her 12-year-old half-brother, Rocky, in a two-
bedroom apartment in Wichita. During this same time period, S.W.'s older half-brother,
Robert (who graduated from high school during this time) stayed at the apartment
periodically, and S.W.'s older half-sister, Jessica, along with her husband, Ruben Diaz,
moved into the apartment. Jessica and Diaz would eventually separate, but Diaz
continued living at the apartment after the couple's separation.

Sometime around December 2006, S.W. told Robert—then, with Robert's urging,
told Rocky—that a person named "Reggie" had touched her vagina with his finger.
Though Robert claimed that at the time he did not know a person named Reggie (a claim
unsupported by Rocky's testimony), Rocky recognized the name as referring to Stafford,
a person Rocky had known since he was 4 years old. Stafford, who lived nearby, would
occasionally visit the apartment, and Wells would also visit Stafford at his home. Rocky
said that Wells would sometimes take S.W. with her when she visited Stafford. Rocky
estimated that this took place once every 2 to 3 months. Notably, Rocky said that on the
day S.W. told him and Robert that Stafford had touched her, Wells had taken S.W. to
Stafford's house. Wells had brought S.W. back to the apartment before going out again
that evening with Stafford.
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Robert and Rocky failed to tell anyone about S.W.'s statement. Regardless,
sometime between December 2006 and March 2007, Diaz overheard Robert tell Rocky
that he thought Wells had "sold [S.W.] for money," which Diaz interpreted as meaning
Wells had prostituted S.W. to someone. Because he did not know whether Robert's
statement was true, Diaz tried to observe something that would corroborate what he had
heard before telling someone about Robert's statement. But after failing to notice
anything to corroborate the statement, Diaz eventually told his boss, Robert Barnes, on
Sunday, July 8, 2007, about overhearing the statement.

The next day, July 9, Barnes contacted authorities, resulting in Melissa Gardner, a
social worker with the Kansas Department of Social and Rehabilitation (SRS), and
William Riddle, a detective with the Wichita Police Department, going to the apartment
that day to investigate the allegation. But neither Wells nor S.W. were at home that day.
The next day, July 10, patrol officers went to the apartment and made contact with S.W.
The officers placed S.W. in protective custody and transported her to the Wichita
Children's Home where she was interviewed by Gardner and Riddle. Rocky was also
removed from the apartment that same day.

During her interview with Gardner and Riddle, S.W., who appeared to be happy
and comfortable with being interviewed, did not disclose to them that she was being
sexually abused. Gardner also spoke to Rocky and Robert on July 10. Rocky denied that
S.W. had ever been inappropriately touched, and Robert told Gardner that he did not have
any concerns about something bad happening to S.W. Robert failed to mention S.W.'s
statement about a person named Reggie touching her vagina.

After S.W.'s interview was completed on July 10, she was placed in foster care
with Joyce White-Dechant. Kerri Myers, an employee of Youthville, became S.W.'s case
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manager. According to White-Dechant, she was not aware of S.W.'s background or the
allegation that she had been sexually abused when S.W. came to live with her. White-
Dechant said that when S.W. first came to stay with her, S.W. was "very quiet, very
distraught, angry, sleepless, wet the bed, didn't eat well, [and] had a stomach ache all the
time." White-Dechant also said that S.W. had told her that she did not want to go home
and was scared to do so. During the time S.W. lived with White-Dechant, S.W. attended
counseling about twice a week.

In October 2007, White-Dechant came into the bathroom while S.W. was taking a
bath and noticed S.W. fondling herself. White-Dechant asked S.W. if anybody had ever
"bothered her." In response, S.W. ducked her head and did not answer. White-Dechant
told S.W. that it was okay and that if she ever had anything she wanted to tell, White-
Dechant would listen to her. White-Dechant then left S.W. in the bathroom and went to
her own bedroom. A short time later, S.W. came into White-Dechant's bedroom and told
her that there was something she needed to tell her. According to White-Dechant, S.W.
said that she had been touched before. White-Dechant then asked S.W. if she had been
touched more than once. S.W. said yes and stated that she had been touched on her
"potty." White-Dechant asked if potty meant her private part, and S.W. said yes.

Initially, S.W. would not tell White-Dechant who had touched her, but she
eventually identified the person as Wells' boyfriend, Reggie. According to White-
Dechant, S.W. told her that Wells was trying to get money from Reggie in exchange for
having sex with S.W. S.W. also told White-Dechant that Reggie lived "down and around
the corner" from her apartment.

After S.W. made her disclosure, White-Dechant immediately contacted Myers,
and Myers came to White-Dechant's home the next day to speak with S.W. On that day,
Myers said that S.W. acted more anxious than usual and seemed distracted. After Myers
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had been there for a while, she asked S.W. if she had something that she wanted to talk
about, and S.W. said that she did. At that point, White-Dechant left the room, leaving
Myers and S.W. together by themselves. S.W. then told Myers that a man named Reggie
had touched her. Using a female doll that White-Dechant had inside her house, Myers
had S.W. show her on the doll where she had been touched. S.W. took the doll, laid it
down on her lap with its legs facing her, lifted up the doll's skirt, and repeatedly poked
the doll between its legs. Myers described the poking as "forceful and violent."

S.W. told Myers that Reggie lived down the street and that after he would touch
her, Wells would take money from him. S.W. also said that Reggie and Wells would go
into another room and that when they came out, Reggie would give Wells money. Myers
asked S.W. what Reggie and Wells were doing in the other room, and S.W. spelled "s-e-
x." Myers asked S.W. if anyone else had touched her, and S.W. said no, that Reggie was
the only one.

On October 25, 2007, Myers reported S.W.'s disclosure to SRS. Gardner and
Riddle tried to interview S.W. on November 8, 2007, but S.W. had the flu at that time.
Accordingly, Gardner rescheduled the interview for November 20. Prior to that time,
however, S.W. underwent a sexual assault examination on November 9, which did not
reveal any physical injuries or show that S.W. had been infected with any sexually
transmitted diseases. Kathy Gill-Hopple, the nurse who conducted the exam, asked S.W.
if anyone had ever touched her in a way that made her feel mad or sad, and S.W.
responded by saying Reggie touched her. S.W. pointed to her vaginal area and said that
Reggie had touched her down there underneath her clothes. When Gill-Hopple asked
S.W. what part of Reggie's body touched her, S.W. pointed to her vaginal area and said
that Reggie touched her with his "same spot." Gill-Hopple asked S.W. if Reggie had ever
made her touch him, and she said no. But shortly thereafter, S.W. said that Wells had
made her touch Reggie. When asked to explain more, S.W. said that Wells made her
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touch Reggie under his clothes and pointed to her vaginal area again to indicate the area
of Reggie's body she was forced to touch. Gill-Hopple also asked S.W. if there were any
other parts of her body that Reggie had touched. S.W. answered by pointing behind to her
anal area and saying that Reggie had touched her butt with his "same spot" under her
clothes.

On November 20, 2007, Gardner and Riddle interviewed S.W. Gardner
summarized the interview as follows:

"She reported that her mother took her to a man named Reggie's house. That they
had walked there. That it was nearby her house. That her mother and Reggie had touched
her on her—what she called potty, which she indicated on the drawing that was her
vaginal area. She said that they touched her potty with their hands on the inside. She said
they touched her bottom on the inside as well with their hands. And she said Reggie
touched her potty with his lower part, which she indicated was his penis.
"And she also reported that—I asked her if he asked—if Reggie asked her to
touch him? She said that he asked her to put her mouth on his lower part. And she said
she was scared, but her mom told her to do it and pulled her over to him. She said it was
just like an ice cream cone and that white stuff came out. And that she was scared and
crying and was screaming. And she said this happened multiple times. She gave a number
of five times when we initially asked.
"She also reported it happened on—that her potty—that her mom touched her
potty seven times."

Riddle said that during this interview, S.W. stated that these acts occurred when
she was in kindergarten during the 2006-2007 school year. According to Riddle, S.W.
said the touching occurred after the school year had started but before Halloween.

After interviewing S.W. on November 20, Riddle asked Rocky if he knew a
person named Reggie. Rocky said yes and gave Riddle descriptions of Reggie's house
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and vehicle. Based on Rocky's descriptions, Riddle determined that the name Reggie
likely referred to Stafford, who lived only a few blocks away—within walking distance—
from the Wells' residence. After obtaining Stafford's driver's license photo, Riddle placed
the picture in a photo lineup with five other photos and showed the lineup to Rocky.
Rocky identified Stafford's photo as depicting Reggie.

On November 27, Gardner and Riddle conducted another interview of S.W.
During the interview, Riddle showed S.W. the photo lineup and asked her if Reggie's
picture was in the lineup. S.W. identified Stafford's photo as depicting Reggie. S.W. told
Gardner and Riddle that Stafford had given Wells a "nasty movie" involving animals and
people. S.W. said the people did "nasty things" to each other in the movie. S.W. told
them she watched the movie at her house and at Stafford's house. Riddle also spoke with
Rocky on November 27 and asked him if he was aware of anything that would be
bothering S.W. Rocky said he was not aware of anything. But in January 2008, after the
State filed charges against Stafford and Wells, Rocky disclosed to law enforcement what
Robert had told him about S.W.'s statement.

The State ultimately charged Wells and Stafford with two counts of rape in
violation as K.S.A. 2006 Supp. 21-3502(a)(2) and two counts of aggravated criminal
sodomy in violation of K.S.A. 2006 Supp. 21-3506(a)(1) (one charge alleging anal
sodomy, the other alleging oral sodomy). The State also charged Wells with aggravated
endangering a child in violation of K.S.A. 21-3608a(a)(1). The State alleged that all of
these crimes occurred sometime between August 15, 2006, and July 10, 2007. Wells and
Stafford, despite making requests to have separate trials, were represented by different
attorneys at a joint jury trial.

At the trial, Rocky testified that he failed to disclose what S.W. had told him and
Robert (that Stafford had touched her vagina) because he was afraid S.W. and he would
15



be taken away from Wells. Robert testified that he did not contact the police or SRS
because he was shocked by S.W.'s statement, causing him not to know what to do or how
to react. Though Robert did not report S.W.'s statement to the authorities, he did claim
that he went over to the apartment more often to keep an eye on S.W. and see if he could
notice anything to corroborate S.W.'s story, which, according to Robert, he never did.
Robert also said that S.W. never told him that Wells was making her touch or submit to
touching by Stafford.

S.W., who was 7 years old at the time of trial, testified that during the time she
was in kindergarten, Wells took her to Stafford's home on multiple occasions. S.W. said
that Stafford would touch her private every time that she was at his house, which she said
occurred eight times. S.W. said Stafford would touch her while they were both naked in
his bedroom and lying on a bed. According to S.W., while Stafford was touching her,
Wells would be sitting naked on the same bed. S.W. said that Stafford's private touched
the inside of her private and that Stafford also put his private inside her mouth. Notably,
when S.W. was asked whether anyone had ever touched her "bottom" in a way that she
did not like, S.W. said no.

S.W. said that after Stafford was finished touching her, he would give Wells
money. S.W. admitted that though she did not actually see Stafford give Wells money,
Wells told her about receiving money from Stafford. S.W. said that Wells would spend
this money on "whiskey and cigarettes."

S.W. said that on the day she told Rocky and Robert about Stafford touching her,
Wells had taken her to Stafford's home earlier that day. S.W. also said that she told
White-Dechant about being touched by Stafford.

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Wells and Stafford did not testify at trial, nor did they present any evidence. The
district court instructed the jury that it could find Wells guilty of the crimes charged
against her based on her being a direct participant in the crimes or as an aider and abettor
of the crimes. The jury acquitted Wells and Stafford of the aggravated criminal sodomy
count alleging anal sodomy. But the jury found Wells and Stafford guilty of both rape
counts and guilty of the aggravated criminal sodomy count alleging oral sodomy. The
jury also found Wells guilty of aggravated endangering a child.

After denying Wells' motion for a departure sentence, the district court ordered
Wells to serve a hard 25 life sentence for each of her two rape convictions and her one
conviction for aggravated criminal sodomy. The court ordered the life sentences to run
concurrent with one another. The court also imposed a concurrent 7-month prison
sentence for Wells' aggravated endangering a child conviction. Wells filed a timely
appeal.

More facts will be stated as they become pertinent to the issues discussed below.

PROSECUTORIAL MISCONDUCT

Wells first contends that the prosecutor committed misconduct during his closing
argument when discussing how the jury's unanimity instruction applied to the two rape
counts. Wells alleges that these comments were erroneous statements of law that
prejudiced her. Accordingly, she asks that we reverse her rape convictions and remand
for a new trial.

We apply the following standard to review allegations of prosecutorial
misconduct:

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"Appellate review of an allegation of prosecutorial misconduct requires a two-step
analysis. First, an appellate court decides whether the comments were outside the wide
latitude that a prosecutor is allowed in discussing the evidence. Second, if misconduct is
found, an appellate court must determine whether the improper comments prejudiced the
jury against the defendant and denied the defendant a fair trial. [Citations omitted.]" State
v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012).

Applicable Facts

The State charged Wells with two counts of rape, two counts of aggravated
sodomy, and one count of aggravated endangering a child, all of which the State alleged
occurred sometime between August 15, 2006, and July 10, 2007. S.W.'s prior statements
to investigators and her trial testimony established that Wells had deliberately taken S.W.
to Stafford's house on multiple occasions (more than two times) during the 2006-2007
school year so Stafford could rape and sodomize S.W. in exchange for money. Though
S.W. could not give dates at trial as to when these events occurred, Riddle stated that
S.W. indicated at a November 20 interview that Stafford had touched her after she had
started kindergarten but before Halloween. Furthermore, S.W. testified that on the same
day she made her disclosure to Robert and Rocky that Stafford was touching her, Wells
had taken her to Stafford's home earlier that day, where he had again molested her.
Consistent with this testimony, Rocky stated that Wells had taken S.W. to Stafford's
home on the same day that S.W. made her disclosure to them, which Rocky believed
occurred sometime around December 2006.

Because the evidence presented at trial showed that Wells may have performed
multiple, criminal acts, any of which could constitute the charged crimes, the district
court gave a unanimity instruction to the jury in order to alleviate the possibility that the
jury would convict Wells of the charged crimes without unanimously agreeing on the
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particular acts that constituted each crime. See State v. Voyles, 284 Kan. 239, 244-45,
248-49, 160 P.3d 794 (2007). The instruction stated:

"The State claims distinct multiple acts which each could separately constitute
the crime of rape, aggravated criminal sodomy and aggravated endangering a child. In
order for the defendant to be found guilty of rape and aggravated criminal sodomy and
aggravated endangering a child, you must unanimously agree upon the same underlying
act."

During closing arguments, the prosecutor made the following comment regarding
the unanimity instruction's application to the rape counts:

"Instruction number 17, it's kind of referred to as the multiple acts instruction.
What it says is, in essence, and you read it if I'm misquoting here, but it says, in essence,
you all have to agree that these things are unanimous that these things occurred on
specific times. I don't have a date to give you. [S.W.] doesn't have a date to give you. But
you must unanimously agree that it happened at least once as to this count. And then
later on there's a separate rape count. You have to agree that it happened at least a
second time." (Emphasis added.)

The prosecutor used similar language when discussing the second count of rape,
saying:

"Instruction number eight has to do with, again, rape. I'm not going to repeat this.
You simply have to find unanimously that it happened at least a second time. She's very
clear it happened many times. Was it truly eight? Was it five or six? She's not sure. But
she knows it happened a lot, I think were the words she used, a lot or a bunch. Again,
child's words. But you have to unanimously agree that it happened at least that second
time." (Emphasis added.)

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Later during his closing argument, the prosecutor stated, "If I've said anything, as
I'm explaining this to you, that you don't think is supported by the instructions, clearly
look at the instructions."

In response to the prosecutor's comments about the unanimity instruction, Wells'
defense counsel made the following statement during his closing argument:

"And I think it's instruction 17 that [the prosecutor] talked to you about, you've
got to agree that it occurred and it's the same incident. Not that she was raped twice
during that time period. When. Where. How."

Analysis

The purpose of a unanimity instruction is to alleviate the possibility that a
defendant will be convicted of a crime without the jury unanimously agreeing on the
particular act that constituted the crime. This possibility arises when, as here, a defendant
is charged with a crime but the evidence presented at trial shows that the defendant
committed multiple criminal acts, any of which could constitute the charged crime. In
such a situation, a district court, as was done here, should instruct the jury that it has to
unanimously agree upon the particular act constituting the crime. See Voyles, 284 Kan. at
244-45, 248-49.

Though the prosecutor, consistent with Voyles, told the jury that the unanimity
instruction meant that it had to agree the alleged acts "occurred on specific times," he
went on to tell the jury that it could find Wells guilty of the first rape count if it
unanimously found that S.W. was raped "at least once" and could find Wells guilty of the
second rape count if it found that S.W. was raped "at least a second time." The
prosecutor's statements misconstrued the meaning of the unanimity instruction because
20



the statements conveyed to the jury that it could find Wells guilty of both rape counts
without unanimously agreeing on the underlying act constituting each rape count.
Accordingly, we find that the prosecutor's statements misstated the law and, thus, fell
outside the wide latitude that a prosecutor is allowed during closing argument. See State
v. Bunyard, 281 Kan. 392, 406, 133 P.3d 14 (2006) ("Misstating the law is not within the
wide latitude given to prosecutors in closing arguments.").

Because we have found that the prosecutor committed misconduct during his
closing argument, we move on to the second prong of the prosecutorial misconduct
analysis:

"When a prosecutor makes an improper comment during closing argument, an
appellate court conducts a harmlessness inquiry, determining whether the misconduct
was so prejudicial that it denied the defendant a fair trial. Three factors are considered.
First, was the misconduct gross and flagrant? Second, was the misconduct motivated by
ill will? Third, was the evidence of such a direct and overwhelming nature that the
misconduct would likely have had little weight in a juror's mind? None of these three
factors is individually controlling." Marshall, 294 Kan. 850, Syl. ¶ 3.

With regard to the first factor—whether the misconduct was gross and flagrant—
we consider whether the misconduct was repeated, was emphasized, violated a long-
standing rule, violated a clear and unequivocal rule, or violated a rule designed to protect
a constitutional right. Marshall, 294 Kan. 850, Syl. ¶ 6. Here, the prosecutor repeated his
erroneous statements twice to the jury concerning the unanimity instruction's application
to the rape counts. Second, to ensure jury unanimity in multiple acts cases, we have
clearly and unequivocally required since at least 2001 that the State inform the jury of
which acts to rely on in its deliberations or the court must instruct the jury to agree on the
specific criminal acts. See Voyles, 284 Kan. at 255. This requirement, however, is not
based on a constitutional right but on K.S.A. 22-3421's requirement that a jury's verdict in
21



a criminal case be unanimous. See Voyles, 284 Kan. at 250 ("[T]he right to a unanimous
jury verdict in a Kansas court is not a federal constitutional right or a state constitutional
right, but rather a statutory one."). Even if the prosecutor's misstatements were merely
inarticulate and not intentional, a prosecutor should be sensitive to our repeated
statements regarding the purpose of a unanimity instruction in a multiple acts case.
Accordingly, we find that the prosecutor's statements were gross and flagrant.

In analyzing whether a prosecutor's misconduct was motivated by ill will, we
consider whether the misconduct was deliberate, repeated, or in apparent indifference to a
court's ruling. Marshall, 294 Kan. 850, Syl. ¶ 7. At two different times during his closing
argument, prosecutor expressed an erroneous understanding of how the unanimity
instruction should be applied to the rape counts. But it does not appear to us that the
prosecutor deliberately made the statements regarding the unanimity instruction in order
to undermine its application. In fact, before he made the statements at issue, the
prosecutor referred the jury to the unanimity instruction and told the jury to read it if he
was "misquoting" it and later told the jury that if he had said anything during his closing
argument that was not "supported by the instructions, clearly look at the instructions."
Furthermore, the prosecutor never made the statements in apparent indifference to the
district court's ruling. Accordingly, we conclude that the statements were not the result of
ill will on the part of the prosecutor.

Finally, we turn to the third factor: Was the evidence of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors? In answering this question, the State, as the party "benefitting from the
prosecutorial misconduct, bears the burden to establish beyond a reasonable doubt that
the error did not affect the defendant's substantial rights, i.e., there is no reasonable
possibility the error affected the verdict." State v. Inkelaar, 293 Kan. 414, 431, 264 P.3d
81 (2011); see, e.g., State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 (2012) (finding
22



prosecutor's misstatement did not affect the outcome of the trial in light of the entire
record).

The State contends that the prosecutor's comments had little effect on the result of
the trial given the fact that S.W. disclosed to multiple people that she was sexually
abused and described the abuse in a manner that was generally consistent (i.e., Wells took
S.W. to Stafford's house numerous times during the 2006-2007 school year, where
Stafford raped and orally sodomized her). Though S.W. could not give exact dates at trial
as to when the acts occurred, Riddle stated that S.W. indicated at a November 20th
interview that Stafford had touched her after she had started kindergarten but before
Halloween. Furthermore, S.W. testified that on the same day she made her disclosure to
Robert and Rocky that Stafford was sexually abusing her, Wells had taken her to
Stafford's house earlier that day, where he had again molested her. Consistent with this
testimony, Rocky stated at trial that on the same day S.W. made her disclosure to him and
Robert about Stafford touching her, Wells had taken S.W. to Stafford's home earlier that
day and had brought her back to the apartment before going out that evening with
Stafford. Rocky believed this occurred sometime around December 2006.

Thus, the evidence presented at trial established that Stafford, with Wells'
assistance, raped S.W. multiple times throughout the 2006-2007 school year and that one
of these instances occurred prior to Halloween 2006 and a second instance occurred
around Christmas 2006. Accordingly, we conclude that prosecutor's statements regarding
the unanimity instruction would likely have had little weight in the minds of the jurors in
determining whether Wells was guilty of both rape counts. We also note that the district
court properly instructed the jury on the unanimity requirement and that Stafford's
counsel gave a correct explanation of the unanimity instruction during his closing
argument. Finally, we note that the jury acquitted Wells of the aggravated criminal
sodomy charge alleging anal sodomy. The jury's verdict for this count was likely based
23



on S.W.'s testimony at trial denying that anyone had ever touched her "bottom" in a way
that she did not like. Accordingly, we believe the jury's verdict shows that the jury
carefully considered which charges were established by the evidence presented at trial.

We conclude that the prosecutor's comments did not improperly prejudice the jury
against Wells as to deny her a fair trial.

ALTERNATIVE MEANS

Next, Wells argues that the district court's instruction on aggravated criminal
sodomy (oral) established alternative means for committing the crime. In support of this
contention, Wells points to the district court's instruction on sodomy, defining the act in
part as "oral contact or oral penetration of the female genitalia or oral contact of the male
genitalia." (Emphasis added.) Wells contends that this definition instructed the jury that it
could find her guilty of aggravated criminal sodomy (oral) under two alternative means—
oral contact or oral penetration of the female genitalia or oral contact of the male
genitalia. Wells concedes that there was evidence of oral contact of the male genitalia
(i.e., Stafford placed his penis inside S.W.'s mouth), but she argues that because there
was no evidence presented at trial that S.W.'s vagina was ever orally contacted or orally
penetrated, her conviction for aggravated criminal sodomy (oral) must be reversed
pursuant to the super-sufficiency requirement of State v. Wright, 290 Kan. 194, 224 P.3d
1159 (2010), and State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994).

As we recently noted in State v. Brown, 295 Kan. 181, Syl. ¶¶ 3-6, 284 P.3d 977
(2012), we begin our analysis of an alternative means issue by looking at the language
used in the applicable statute (or in this case, statutes) to determine whether the
legislature intended to establish alternative means through the use of the language at
issue. Issues of statutory interpretation and construction, including issues of whether a
24



statute creates alternative means, raise questions of law reviewable de novo on appeal.
See State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012); see also State v.
Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005) (court exercises de novo review over
jury unanimity issues). The most fundamental rule of statutory construction is that the
intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan.
41, 47, 223 P.3d 780 (2010). An appellate court's first attempt to ascertain legislative
intent is through an analysis of the language employed, giving ordinary words their
ordinary meaning. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). If a statute is
plain and unambiguous, an appellate court does not need to speculate further about
legislative intent and, likewise, the court need not resort to canons of statutory
construction or legislative history. Urban, 291 Kan. at 216.

Analysis

In Brown, we provided the following guidelines for determining whether the
legislature intended for language of a statute to establish alternative means of committing
a crime or whether the language merely describes a single means of committing the
crime:

"[I]n determining if the legislature intended to state alternative means of committing a
crime, a court must analyze whether the legislature listed two or more alternative distinct,
material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in
some statutes, causation elements. Or, did the legislature list options within a means, that
is, options that merely describe a material element or describe a factual circumstance that
would prove the element? The listing of alternative distinct, material elements, when
incorporated into an elements instruction, creates an alternative means issue demanding
super-sufficiency of the evidence. Often this intent can be discerned from the structure of
the statute. On the other hand, the legislature generally does not intend to create
alternative means when it merely describes a material element or a factual circumstance
that would prove the crime. Such descriptions are secondary matters—options within a
25



means—that do not, even if included in a jury instruction raise a sufficiency issue that
requires a court to examine whether the option is supported by evidence." Brown, 295
Kan. at __ (284 P.3d at 991-92).

We also noted in Brown that words or phrases stated in a series and separated by
the disjunctive "or" do not establish alternative means of committing a crime if they fail
to state additional and distinct ways of committing the subject crime, that is, if they do
not require proof of at least one distinct, material element of mens rea, actus reus, or
causation. See Brown, 295 Kan. at 181, Syl. ¶ 7.

At the time of the offense, K.S.A. 21-3506(a)(1) defined aggravated criminal
sodomy as "[s]odomy with a child who is under 14 years of age." The language at issue
in this case comes from K.S.A. 21-3501(2), which defines the act of sodomy as "oral
contact or oral penetration of the female genitalia or oral contact of the male genitalia;
anal penetration, however slight, of a male or female by any body part or object; or oral
or anal copulation or sexual intercourse between a person and an animal." (Emphasis
added.)

K.S.A. 21-3506(a)(1) proscribes the aggravated crime of engaging in the act of
sodomy with a child who is under 14 years of age. The language and punctuation of
K.S.A. 21-3501(2) indicate that there are three general but distinct ways in which one can
complete the act of sodomy: (1) oral contact of genitalia, (2) anal penetration, and (3)
sexual intercourse with an animal. See State v. Burns, 295 Kan. __, Syl. ¶ 7, 287 P.3d 261
(2012). We note that each act described within the definition of sodomy is separate and
distinct from the other—the acts are factually different from one another, and one act is
not inclusive of the others. Furthermore, each act is separated by a semicolon, which
suggests that the legislature intended for each act to constitute a specific means of
completing the general act of sodomy.
26




Wells contends that the language used to describe the first means of completing
the act of sodomy—oral contact of genitalia—contains separate means within itself (i.e.,
oral contact or oral penetration of the female genitalia is one means and oral contact of
the male genitalia is the other means). We reject this argument because the phrase "oral
contact or oral penetration of the female genitalia or oral contact of the male genitalia"
does not state material elements of sodomy but merely gives a full description of one
means of committing sodomy—oral contact of genitalia. The distinction between female
and male genitalia contained within the phrase is superficial and unnecessary. Orally
contacting genitalia encompasses both oral contact and oral penetration of the female
genitalia as well as oral contact of the male genitalia. See State v. Britt, 295 Kan. __, Syl.
¶ 5, __ P.3d __ (No. 103,727, filed November 2, 2012) (reaching same conclusion).

The phrase "oral contact or oral penetration of the female genitalia or oral contact
of the male genitalia" does not establish two alternative means of committing sodomy.
Instead, the phrase only establishes one means of committing sodomy—oral contact of
genitalia. Consequently, though the phrase was used in the jury instructions to define
sodomy, the phrase does not trigger concerns of jury unanimity or demand application of
the super-sufficiency requirement. Consequently, Wells is not entitled to reversal of her
conviction for aggravated criminal sodomy.

Because we conclude that the jury in this case was not instructed on alternative
means of committing aggravated criminal sodomy (oral), we decline to address the State's
argument that Wright (rejecting application of a harmless error analysis in alternative
means cases) was wrongly decided.



27



LIMITATION OF CROSS-EXAMINATION

Next, Wells argues that the district court erred when it prevented defense counsel
from questioning S.W. about how deeply Stafford's penis penetrated her. Wells argues
that such questioning was crucial to her defense because if S.W. had testified that
Stafford repeatedly penetrated her with his whole penis, the jury would have found her
allegations of sexual abuse less credible given the fact that she was examined and found
not to have any injuries to her vagina.

A district court may exercise reasonable control over the scope of cross-
examination. A district court's decision to limit cross-examination is reviewed under an
abuse of discretion standard. State v. Parks, 294 Kan. 785, 797, 280 P.3d 766 (2012).

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
in other words, if no reasonable person would have taken the view adopted by the trial
court; (2) is based on an error of law, in other words, if the discretion is guided by an
erroneous legal conclusion; or (3) is based on an error of fact, in other words, if
substantial competent evidence does not support a factual finding on which a prerequisite
conclusion of law or the exercise of discretion is based. [Citation omitted.]" State v.
Warrior, 294 Kan. 484, 505, 277 P.3d 1111 (2012).

Applicable Facts

During Wells' cross-examination of S.W., the following exchange took place:

"[DEFENSE COUNSEL]: I'm not a girl, so I have to ask this question because I
don't know. I don't have a girl's body. How—when you said Reggie's private went inside
your private, how far inside you is that?
"[PROSECUTOR]: I'm going to object as to relevance.
28



"THE COURT: Well, the law does not require anything but any penetration. So
limit your cross-examination to that.
"[DEFENSE COUNSEL]: This goes to physical injuries, your Honor.
"THE COURT: Well, we don't have—you can limit your examination to what
I've told you.
"[DEFENSE COUNSEL]: All right.
"Q. (BY [DEFENSE COUNSEL]) [S.W.], I'm not going to ask that question of you.
Okay.
"A. Okay.
"Q. I'm sorry. How did you know that Reggie's private was going inside you?
"A. I felt it.
"Q. Okay. Because, see, I'm not a girl, and I don't know these things. Right? I'm not as
smart as you in that way. Did it hurt?
"A. Yeah.
"Q. Did it hurt a lot?
"A. Yes.
"Q. Okay. You know, have you ever cut your hands or something and seen your own
blood? Have you ever cut yourself and had a Band-Aid put on?
"A. Um-hum.
"Q. Have you seen your own blood before?
"A. Um-hum.
"Q. Did you see—when Reggie was doing stuff to you, did you see any of your own
blood then?
"A. No."

After S.W. testified, Gill-Hopple, the director of the Sexual Assault Nurse
Examiner Program at Via Christi Medical Center and the nurse who conducted the sexual
assault examination of S.W., testified at length about the signs of physical trauma that
likely would be visible following sexual intercourse between an adult male and a young
female. Gill-Hopple testified that she examined S.W. on November 9, 2007, 4 months
after S.W. was removed from Wells' apartment and that she exhibited no signs of acute or
healed injuries to her genitalia.
29




Gill-Hopple testified that there is no medical truth to the perception that
penetration of the female sex organ necessarily affects the hymen, i.e., one cannot look at
the hymen to determine whether a female is a virgin. She further explained that even if a
vagina suffers a tear from being penetrated, there is no guarantee that evidence of the tear
will remain after it heals. Accordingly, the time between the last sexual encounter and the
sexual assault examination plays a great role in determining whether injuries from the
assault will be visible to an examiner. Notably, Gill-Hopple testified that it is "very
normal" not to find visible injuries to the vagina 3 to 4 months after a sexual assault and
that very rarely do pediatric patients show signs of injury—even when it is confirmed that
they have been sexually penetrated and are examined within 72 hours after the encounter.

During cross-examination, Wells' attorney had the following exchange with Gill-
Hopple:

"Q. And scarring—when we talk about the word scarring, that is evidence that there was
a tear and now it's healed up but there's still some evidence that there had been a tear
previously?
"A. That is the typical definition of a scar. Um-hum.
"Q. And based upon your expert opinion, or if you want to use common sense as well,
multiple insertions of a male penis into a five-year-old vaginal opening is going to
increase the likelihood of you being able to find tears or scarring?
"A. No, not necessarily.
"Q. So does it matter the depth of the insertion that would increase the likelihood?
"A. That's possible."

Neither Wells nor Stafford presented any evidence to contradict Gill-Hopple's
testimony or to suggest that the depth of penetration determined whether a child's vagina
would suffer lasting physical trauma.
30



Analysis

The question before us is: If S.W. had testified on cross-examination that
Stafford's penis penetrated her deeply, could that testimony be considered relevant in
determining whether S.W.'s allegation of rape was credible, given the fact that S.W.
exhibited no signs of acute or healed injuries to her genitalia? K.S.A. 60-401(b) defines
relevant evidence as evidence that is probative and material. In analyzing whether the
evidence is material, the focus is on whether the fact at issue has a legitimate and
effective bearing on the decision of the case and is in dispute. Evidence is probative if it
has any tendency to prove any material fact. State v. Gilliland, 294 Kan. 519, 540, 276
P.3d 165 (2012).

S.W.'s credibility was a material issue at trial because it certainly had a legitimate
and effective bearing on the jury's determination of whether Wells and Stafford had
committed the criminal acts against her. And because Wells and Stafford denied that
S.W. was ever sexually abused, S.W.'s credibility was certainly in dispute at trial. But the
evidence presented at trial indicates that any testimony S.W. could have given regarding
how deeply she was penetrated would have provided little probative value to establishing
her lack of credibility.

First, it is unclear what meaningful answer S.W. could have given to the question
of how deeply Stafford penetrated her. We question whether a 7-year-old child would
have a baseline for measuring the difference between a "deep" and a "shallow"
penetration. Regardless, Wells' attorney was able to ask S.W. whether the penetration
hurt and whether she bled as a result. S.W.'s answers to these questions—that the
penetration did hurt but did not cause her bleeding—would indicate that there was
penetration enough to cause S.W. pain but not necessarily physical injury. This testimony
would be consistent with Gill-Hopple's testimony at trial stating that pediatric patients
31



rarely show signs of injury after being sexually penetrated. Gill-Hopple noted that this
was true even in cases where it is confirmed that the child has been penetrated and is
examined within 72 hours after the sexual encounter. Furthermore, Gill-Hopple stated
that even if there is a vaginal tear as a result of a sexual encounter, there is no guarantee
that evidence of the injury will remain after it heals. Further, she testified that it is normal
not to find visible injuries to the vagina 3 to 4 months after a sexual assault. As noted
above, Gill-Hopple did not examine S.W. until 4 months after she was removed from
Wells' home.

Based on Gill-Hopple's testimony, the fact that S.W. exhibited no signs of acute or
healed injuries to her genitalia would not have contradicted her claim that Stafford had
penetrated her. Accordingly, even if S.W. had testified that Stafford penetrated her
deeply, such testimony would have done little to discredit S.W.'s allegation of being
raped. Accordingly, we conclude that the district court did not abuse its discretion when it
prevented Wells' attorney from questioning S.W. about how deeply Stafford had
penetrated her.

THE DISTRICT COURT'S ANSWER TO A JURY QUESTION


Wells next claims that the district court violated her constitutional and statutory
rights to be present at all critical stages of her trial when the court—after consulting with
the attorneys in the presence of Wells—answered a question from the jury via written
note. Wells contends that instead of employing this method, the district court should have
answered the jury's question in open court while she was present.

A claim that a defendant was deprived of his or her statutory and constitutional
right to be present during a portion of the trial raises legal questions that are subject to
32



unlimited review on appeal. State v. Engelhardt, 280 Kan. 113, 121, 119 P.3d 1148
(2005).

Applicable Facts

During jury deliberations, the jury sent out the following question: "May we
please have the legal definition of abets." The district court consulted with the attorneys
in the presence of Wells. Defense counsel objected to any definition being provided to
the jury, claiming that the proper response was that words are given their common usage
and meanings. Over this objection, the court sent the jury the following written answer:
"Abet means to encourage or assist someone."

Analysis

A criminal defendant has a constitutional and statutory right to be present at all
critical stages of his or her trial. See Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L.
Ed. 2d 353, reh. denied 398 U.S. 915 (1970); K.S.A. 22-3405(1); State v. Bolton, 274
Kan. 1, 4-5, 49 P.3d 468 (2002). K.S.A. 22-3405(1) provides in relevant part: "The
defendant in a felony case shall be present at the arraignment, at every stage of the trial
including the impaneling of the jury and the return of the verdict, and at the imposition of
sentence, except as otherwise provided by law." We have interpreted K.S.A. 22-3405(1)
to mean:

"[A] felony defendant must be present at any stage of the trial when the jury is in the
courtroom or when the defendant's presence is essential to a fair and just determination
of a substantial issue. The statutory command of K.S.A. 22-3405(1) is analytically and
functionally identical to the requirements under the Confrontation Clause and the Due
Process Clause of the federal Constitution that a criminal defendant be present at any
33



critical stage of the proceedings against him or her." (Emphasis added.) Engelhardt, 280
Kan. 113, Syl. ¶ 2.

In addition to K.S.A. 22-3405(1), K.S.A. 22-3420(3) provides:

"After the jury has retired for deliberation, if they desire to be informed as to any
part of the law or evidence arising in the case, they may request the officer to conduct
them to the court, where the information on the point of the law shall be given, or the
evidence shall be read or exhibited to them in the presence of the defendant, unless he
voluntarily absents himself, and his counsel and after notice to the prosecuting attorney."
(Emphasis added.)

Wells cites both K.S.A. 22-3420(3) and State v. Coyote, 268 Kan. 726, 1 P.3d 836
(2000), to support her claim that the district court's decision to send a written answer
back to the jury rather than reading the answer in open court violated her right to be
present at all critical stages of her trial. The plain language of K.S.A. 22-3420(3) does not
support Wells' contention because the statute only requires the presence of the defendant
if the jury, after making a request, is taken into the courtroom so it can receive
information from the district court on a point of law. This rule is consistent with our
interpretation of K.S.A. 22-3405(1). See Engelhardt, 280 Kan. 113, Syl. ¶ 2 ("[A] felony
defendant must be present at any stage of the trial when the jury is in the courtroom or
when the defendant's presence is essential to a fair and just determination of a substantial
issue." [Emphasis added.]). Because the jury never asked to be returned to the courtroom
so it could be informed on the legal definition of abets, the district court did not violate
K.S.A. 22-3420(3) by answering the jury's written question via a written note.

Wells' argument that Coyote supports her position is also without merit. In Coyote,
while the jury was deliberating, it sent a written question to the district court asking for
an explanation of an instruction. After briefly discussing the question in chambers with
34



the attorneys but not in the presence of the defendant, the district court sent a written
answer back to the jury. We concluded that the district court's failure to answer the jury's
question in the presence of the defendant violated his statutory and constitutional rights to
be present during a critical stage of his trial. Coyote, 268 Kan. at 731-32.

Our holding in Coyote was not based on the fact that the district court failed to
answer the jury's question orally in open court while the defendant was present. Instead,
our holding was based on the fact that the defendant was not present during the court's
discussion with the attorneys on how to respond (in writing) to the jury's question. The
basis for our holding is reflected in the procedure we outlined in Coyote for handling a
written question from the jury:

"A trial court, when confronted with a question submitted to it by a jury during
deliberations is required to advise counsel, provide the parties with the question, and give
them an opportunity for input in the presence of the defendant. Thereafter, the court is
required to respond in writing to the jury in the presence of the defendant." (Emphasis
added.) Coyote, 268 Kan. at 732.

In other words, to ensure that a defendant's constitutional and statutory right to be
present at critical stages of his or her trial is protected, a defendant must be present during
the court's discussion with the attorneys and ultimate decision on how to respond to a
written jury question. But there is no need that the court read the written answer it
decided out loud to the jury in open court while the defendant is present. Simply
delivering the answer the court decided upon to the jury via written note is sufficient to
satisfy the defendant's right to be present. See Coyote, 268 Kan. at 731 (noting that the
district court's handling of a second written jury question complied with Kansas law; the
court's conduct was described as follows: "The court advised counsel and the defendant
of the question, provided all with an opportunity off the record for input, and after the
hearing, resolved the question submitted. Then the court, in writing, answered the jury
35



question." [Emphasis added.]); accord Burns, 295 Kan. at __ (approving of procedure
outlined in Coyote for answering written question from jury).

We conclude that the district court did not violate Wells' constitutional and
statutory right to be present during all critical stages of her trial when it answered the
jury's question with a written note instead of answering the question in open court while
Wells was present. Wells' right to be present was satisfied because she was present during
the district court's discussion with the attorneys and ultimate decision on how to answer,
in writing, the jury's question.

CUMULATIVE ERROR

Next, Wells argues that the cumulative effect of the errors committed at her trial
substantially prejudiced her right to a fair trial. "Cumulative error will not be found when
the record fails to support the errors raised on appeal by the defendant. [Citations
omitted.]" State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). A single error
cannot constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265
(2010).

Although we concluded that the prosecutor's statements regarding the application
of the unanimity instruction to the rape counts were improper, we also concluded that the
comments were not so prejudicial as to deny Wells a fair trial. Because one error is not
sufficient to constitute cumulative error, we conclude that cumulative error did not deny
Wells the right to a fair trial.

THE DENIAL OF WELLS' MOTION FOR A DEPARTURE SENTENCE

Wells argues that the district court abused its discretion when it denied her motion
for a departure sentence under K.S.A. 21-4643(d) because substantial and compelling
36



reasons existed to justify granting the motion. A district court abuses its discretion if the
judicial action:

"(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken
the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is
guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if
substantial competent evidence does not support a factual finding on which a prerequisite
conclusion of law or the exercise of discretion is based." State v. Ward, 292 Kan. 541,
550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (citing State v. Gonzalez,
290 Kan. 747, 755-56, 234 P.3d 1 [2010]).

Applicable Facts

Prior to sentencing, Wells filed a motion for departure sentence pursuant to K.S.A.
21-4643(d). The motion asserted various grounds supporting departure: a criminal
history score of I based on unclassified misdemeanors relating to driving with a
suspended license; the influence of alcohol on her criminal activity; her own history of
physical and sexual abuse; her participation as an abettor to a dominating personality; her
age of 49; and her lack of any future contact with her children.

The district judge denied the motion, stating:

"Well, the court has heard the evidence. I heard the evidence at trial. I heard the
evidence in pretrial motions. I am aware of what happened to other members of the
family and what happened in this particular case. I don't see any reason for granting a
departure. I will deny the motion for a departure."

Notably, at an evidentiary hearing on the State's pretrial motion to present K.S.A.
60-455 evidence, the court heard testimony from one of S.W.'s sisters who testified that
Stafford had sexual relations with her when she was 12 or 13 years old while Wells was
37



present in the room and encouraging her to perform the sexual acts. This sister also
testified that Stafford had molested S.W.'s other sister when she was a child.

Analysis

Jessica's Law provides that a first-time offender convicted of rape in violation of
K.S.A. 21-3502(a)(2) or aggravated criminal sodomy in violation of K.S.A. 21-
3506(a)(1) must be sentenced to life imprisonment with a minimum term of not less than
25 years "unless the judge finds substantial and compelling reasons, following a review
of mitigating circumstances, to impose a departure." K.S.A. 21-4643(a)(1), (d). K.S.A.
21-4643(d) provides a nonexclusive list of mitigating circumstances a district court may
consider when deciding whether to depart from the statutorily prescribed sentence. A
district court, however, is not obligated to depart simply because a mitigating factor
exists. Rather, a district court has the discretion to either grant or deny the request. In
exercising this discretion, a district court first reviews the mitigating circumstances and
then weighs those circumstances against any aggravating circumstances, ultimately
determining whether substantial and compelling reasons warrant a departure. See State v.
Baptist, 294 Kan. 728, 733, 280 P.3d 210 (2012). But Jessica's Law does not require a
district court to state the reasons why it denied a departure motion; the statute only
requires the district court state on the record the substantial and compelling reasons for
why it granted a departure motion. See K.S.A. 21-4643(d); Baptist, 294 Kan. at 733-35.

Without the second or third prongs of the abuse of discretion standard at issue,
Wells essentially asserts no reasonable person would have agreed with the district court's
decision in light of the mitigating factors she asserted in support of her departure motion.
But based on the evidence the district court heard indicating that Wells had engaged in
the same conduct with her older daughter as she had done with S.W., we conclude that
reasonable people would agree that denying the departure motion and imposing a hard 25
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life sentence pursuant to Jessica's Law was appropriate. Accordingly, we conclude that
the district court did not abuse its discretion by denying Wells' departure motion.

PAROLE ELIGIBILITY AFTER 25 YEARS

As mentioned above, the district court ordered Wells to serve three concurrent
hard 25 life sentences as a result of being convicted of two counts of rape in violation of
K.S.A. 21-3502(a)(2) and one count of aggravated criminal sodomy in violation of
K.S.A. 21-3506(a)(1). Wells argues on appeal that she should be eligible for parole after
20 years under K.S.A. 22-3717(b)(2) instead of 25 years under K.S.A. 21-4643(a) and
K.S.A. 22-3717(b)(5).

After both parties filed their appeal briefs in this case, we rejected this argument in
State v. Hyche, 293 Kan. 602, 604, 265 P.3d 1172 (2011) (quoting State v. Cash, 293
Kan. 326, Syl. ¶ 1, 263 P.3d 786 [2011] ) ("'Notwithstanding the overlap in the parole
eligibility rules contained in K.S.A. 2008 Supp. 22-3717[b][2] and [b][5], an inmate
sentenced to an off-grid, indeterminate hard 25 life sentence pursuant to K.S.A. 21-4643
shall not be eligible for parole until that inmate has served the mandatory 25 years in
prison.'"). Therefore, we conclude the district court did not err in determining that Wells
would be eligible for parole after serving 25 years in prison pursuant to K.S.A. 21-
4643(a).

Affirmed.