State v. Bemis

1

NOT DESIGNATED FOR PUBLICATION

Nos. 118,357
118,358

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIAM K. BEMIS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; FAITH A.J. MAUGHAN, judge. Opinion filed September 6,
2019. Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BUSER, P.J., GREEN and MALONE, JJ.

MALONE, J.: William K. Bemis appeals following his convictions of aggravated
indecent liberties with a child, indecent liberties with a child, electronic solicitation, and
violation of a protective order. Bemis claims that (1) K.S.A. 2018 Supp. 60-455(d)
violates his due process rights under the United States and Kansas Constitutions; (2) there
was insufficient evidence to support his conviction of electronic solicitation; and (3) the
district court violated his constitutional rights when it increased his sentence based on his
criminal history without requiring the State to include the criminal history in the charging
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document and prove it beyond a reasonable doubt to a jury. For the reasons stated in this
opinion, we reject Bemis' claims and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At around 3 p.m. on December 6, 2015, Wichita Police Officer Jason Emery
responded to a report of a domestic violence disturbance at the home of Bemis; his
significant other, K.K. (Mother); her 15-year-old daughter, C.K.; and Mother's two other
minor children. When Emery arrived, he saw a van parked in front of the house and
"items in the yard that obviously didn't belong in the yard . . . something from the house."
There were several other people present, including C.K.; C.K.'s father, D.D. (Father),
who lived in Hutchinson; Mother; and Mother's mother, D.K. (Grandmother).

At his sergeant's request, Emery spoke with C.K., who was sitting in another
officer's patrol vehicle. C.K. was crying, and she told Emery that Father had recently
found out that Bemis "had been touching her breasts and her crotch area over and
underneath her clothing several times a week." At that point, Emery realized that he
would pass the case to detectives and counselors in the Exploited and Missing Child Unit
(EMCU), who were specifically trained to speak with minors about sexual abuse, so he
decided to "back off" and not question C.K. further.

Wichita Police Officer James Pearman also responded to the scene. He spoke with
Grandmother, who told him that she, C.K., and Father had come "to retrieve some of
[C.K.'s] clothing and personal items to get [her] out of the house [be]cause there was a
bad environment going on that they did not want her to be there." Although she was
vague at first in explaining the "bad environment," Grandmother eventually told Pearman
that C.K. and Bemis had "some sexual encounters," which Grandmother described as
"consen[s]ual." Grandmother said that she believed there was only one "sexual
encounter" that happened five or six months earlier.
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As to the events of December 6, 2015, Grandmother said that Mother arrived at
the house while they were moving some items into Father's van and Mother began yelling
and removing items from the van. Mother threw a rock at Father and then threw a rock at
the van, breaking the back passenger's side window. Grandmother said that after breaking
the window, Mother took "a couple pill bottles" and left. Later that day, she was admitted
to the hospital after a suicide attempt in which she took "a large quantity of medication."

Wichita Police Officer William Stevens also responded to the scene, and he spoke
with Father, who had called the police after Mother broke the window in his van. Father
said that C.K. had told Grandmother that she and Bemis had sexual intercourse. When
Father talked to C.K., she said there had been "inappropriate touching," so Father,
Grandmother, and C.K. went to collect C.K.'s belongings so she could go live with
Father. Father told Stevens that during the verbal altercation with Mother, Mother said
that it was C.K.'s fault that Bemis had sex with her.

Detective Kevin Brown of the EMCU was assigned to investigate. Brown
reviewed the relevant reports and interviewed Father and C.K. on December 7, 2015.
C.K. told Brown that the first time Bemis touched her inappropriately, he took her into
her bedroom, removed her pants and underwear, and touched her between her legs. C.K.
told Brown that there were many more incidents like that until September 2015, but she
did not remember the details of each individual incident. C.K. did state that the last
incident occurred in September 2015, which she remembered because it was around the
blood moon; Brown later learned that the blood moon occurred on September 27, 2015.

C.K. told Brown that the last incident involved Bemis asking her to go into the
bedroom he shared with Mother. She said that "she knew what was going to happen . . .
and she just went along with . . . the situation." Bemis sat her down on the corner of the
bed, removed her shirt and bra, and fondled her breasts. He then removed her pants and
underwear and penetrated her vagina with his fingers. C.K. said that after several
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minutes, Bemis stopped and left the room. C.K. told Brown that this happened about 30
times between June and September 2015; she also told Brown that Bemis was never
naked and he never asked her to touch him.

C.K. told Brown that on the night of the blood moon, Mother "noticed something
in disarray in the bedroom," and when Mother asked "if there was anything going on
between" C.K. and Bemis, C.K. told Mother that there was something going on. During
the interview, C.K. and Brown looked at text messages on C.K.'s cell phone, and C.K.
signed a waiver for police to look at the contents of her phone. The cell phone contained
a message from Mother to C.K. dated December 5, 2015, that stated: "'Do you realize
everyone had a part in this. You could have stopped what was going on. He should never
have tried anything. Both of you should never had continued anything. I should have
been better in the beginning and nothing will ever be the same.'" Brown also saw a text
message from C.K. to Bemis dated December 6, 2015, that stated: "'My dad came to pick
me up from grandma's and my grandma told my dad. He knows and he's not happy."

On December 10, 2015, Brown secured Bemis' cell phone and examined it as well.
It contained a text message conversation dated December 9, 2015, in which C.K. wrote to
Bemis: "'FYI, grandma was under the impression that you and I had sex. She asked and I
told her that it was only touching. She said that is why mother is acting the way she was
because she thought you and I had sex. . . . Did you ever straight-out say we had sex to
mom?'" Bemis replied, "'I'm thinking this is stuff we shouldn't talk about in texts.'"

On December 14, 2015, C.K. sent Brown an email, which he described as "asking
for an update and [she] said this situation is tearing my family apart, this is not what I
wanted at all, please let me know what is going on—going to happen next when you get
the chance." Brown spoke with C.K. on the telephone, and she said she wanted to email
him. At 10:12 p.m. that night, Brown received a second email from C.K.:

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"'Hi. This is [C.K.] My family has had a lot of stress and anger caused by some
issues between mom and [Bemis]. I had a lot of stress and anger building up. I wasn't
thinking clearly and therefore I did not entirely tell the truth. Nothing about [Bemis] and I
was true. . . . [T]here was just so much anger I didn't know how to react. I'm sorry. I love
[Bemis] and mom and don't know exactly what all I wanted to come out of this. Maybe I
just wanted to get them help. They both need it. I would prefer to communicate with you
via e-mail from now on if you could. It is easier for me. Thank you.'"

On December 14, 2015, in case 15CR3558, the State charged Bemis with one
count of indecent liberties with a child and one count of aggravated indecent liberties
with a child. The district court issued a protective order preventing Bemis "from having
any contact whatsoever with" C.K. Bemis was released on bond the next day.

On December 18, 2015, Brown again met with C.K., who told him that her
allegations of sexual abuse by Bemis were false. Father and Grandmother had told Brown
that Mother was texting C.K. and trying to get her to change her explanation about what
had happened with Bemis. When Brown asked C.K. if she had told Grandmother or
Father that Mother wanted her to lie, C.K. replied, "'I don't remember.'"

In Brown's two additional interviews of C.K., she maintained that nothing sexual
had happened between her and Bemis. Because of what Father and Grandmother had told
Brown about Mother texting C.K., Brown obtained a second download of C.K.'s cell
phone. He discovered messages dated December 18, 2015, from Mother to C.K. that told
her to "'[d]elete everything except the e-mail,'" and said, "'If you're worried about it,
move all the pictures to your SD card and reset your phone to factory specs, that way he
can't find any texts from me.'" Another message from Mother told C.K. not to take her
cell phone to an appointment with Brown, and when C.K. replied that Father was
"'making [her],'" Mother said that C.K. should "'delete everything. Turn it off and tell him
you don't have it.'" Mother also suggested that C.K. "'[c]onveniently forget it at home.'"

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On December 31, 2015, Father found an unfamiliar cell phone on his coffee table
and began looking through it. C.K. later told Brown that Mother had given her the second
phone at a Christmas celebration at Grandmother's home, which Bemis had also attended.
When Father looked through the cell phone, he found "a whole list of inappropriate texts
between" Bemis and C.K. Father asked C.K. about the text messages and she said, "[I]t's
not that big a deal." Father turned the phone over to the police, and Brown obtained a
download of the information on it. He found a text message from Bemis to C.K. dated
December 27, 2015, that stated: "'I miss you too. Wish I would have listened to you, just
had to wait till summer.'"

Brown spoke with C.K. again on February 23, 2016. Brown asked her about a text
from C.K. to Bemis dated December 6, 2015, that stated:

"'I'm sorry, I don't have much time. My dad is in the shower and doesn't want me
talking to you so I'm going to make this quick. I'm going to try to keep you out of prison
but you need to promise me that you will not do anything to any other girl ever again. I
love you and I don't want you to go to prison. I wouldn't be able to live with myself. Am I
blind or are you a good person? Do you promise?'"

A text message from Bemis responded: "I do." C.K. admitted that she had sent the
first text message to Bemis. C.K., who by this point denied any sexual contact with
Bemis, told Brown that the messages quoted above "refer[red] to his relationship with"
Mother. C.K. also offered innocent explanations for other text messages found on her cell
phone. For example, Brown asked C.K. about a text message conversation between
Bemis and C.K. dated December 29, 2015, that referred to a hearing in Bemis' case being
continued. Bemis told C.K. that his lawyer "'wants you to testify that I didn't do anything.
It's been moved to the 7th at 9:00 a.m.'" C.K. responded, "'Okay.'" C.K. told Brown that
"it's just [Bemis] telling me that I need to tell the truth." When Brown challenged that
interpretation, C.K. replied that it was just "bad wording." When Brown asked C.K. about
a December 30, 2015 message from Bemis to C.K. that stated, "'I remember waking up
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and having a delicious breakfast of [C.K.] in the morning. What happened to that?'" C.K.
said that it was "just a metaphor because 'I get up and we spend a lot of time in the
morning with each other.'"

On March 23, 2016, the State charged Bemis in case 16CR797 with one count
each of aggravated intimidation of a witness or victim, violation of a protective order, and
electronic solicitation. Later, the State filed a motion in each case under K.S.A. 60-455(d)
seeking to introduce evidence (1) of Bemis' "ongoing relationship" with C.K., and (2) that
in 2002 Bemis pled no contest to and was convicted of one count of attempted aggravated
indecent liberties with a child, his stepdaughter in a previous relationship, and he was
sentenced to 51 months' imprisonment. The district court heard argument on the motion
on June 19, 2017, after which it granted the motion, finding that the evidence was "more
relevant and probative than prejudicial." The same day, the district court consolidated
15CR3558 and 16CR797 for trial.

The trial began on June 20, 2017. The State called its first witness, C.K., who was
16 years old by that time. C.K.'s testimony was contradictory. She maintained that she
had made up the allegations against Bemis because he and Mother were not getting along
and C.K. wanted "to get out of the house." C.K. admitted telling Grandmother and
Mother that Bemis had touched her inappropriately, but when asked about the timing of
her disclosures, C.K. testified that she did not remember.

Later in her testimony, after reviewing the transcript of an interview with Brown,
C.K. acknowledged that she had told Brown that it was September 2015 when she first
told Mother that "things were going on between" her and Bemis. The State introduced
into evidence copies of the text messages forensically obtained from both of C.K.'s cell
phones and from Bemis' cell phone.

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After C.K.'s testimony, Grandmother testified that in "mid-summer" 2015, Mother
made a comment "that something was going on between [Bemis] and [C.K.]"
Grandmother did nothing with that information at the time. Moreover, Grandmother
testified that she never talked to C.K. about the allegation until the day that the police
became involved, and she never spoke about it with Mother again.

Father testified next for the State. He said that on December 5, 2015, C.K. asked
him to pick her up at Grandmother's house and said she wanted to come live with him.
When he got to Grandmother's house, Grandmother told him that "something's been
going on between these two, and she kind of explained something sexual had been going
on." According to Father, Grandmother said C.K. and "possibly" Mother had told her
about the "relationship" between C.K. and Bemis. Father testified that Grandmother
called C.K. into the room at that point, told C.K. that she had told Father "what had
happened between her and [Bemis]," and asked C.K. if she had anything to say. C.K. said
to Father, "'I didn't know how to tell you,'" and began crying. Father did not ask for
details because "it was just really uncomfortable," but he told C.K. that they would
retrieve her things the next day and she would come live with him.

After Father's testimony, the district court admitted the following stipulation into
evidence:

"The parties hereby stipulate to the following:
"1. On April 5, 2002, William Kyle Bemis entered a plea of no contest to one
count of attempted aggravated indecent liberties with a child in Reno County, Kansas,
District Court Case No. 01 CR 1173. As a result of his no contest plea, the Court found
him guilty of attempted aggravated indecent liberties with a child.
"2. That case involved allegations that William Kyle Bemis had engaged in
sexual intercourse, oral copulation, and attempted anal sex with his stepdaughter, A.C.,
from the ages of 9 to 13 years old."

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Next, the State called Mother as a witness. Mother acknowledged her December
2015 suicide attempt. She testified that before December 2015:

"I had some paranoid delusions that something was going on [between Bemis and C.K.]
because of a mix of medications that I was on that was causing some pretty wicked side
effects. We had an argument about me thinking something was going on, and after a long
time of me badgering her and berating her she sarcastically responded there was
something going on: Like, 'Yeah, mom, something's going on.'"

After Mother's testimony, the State called licensed social worker and addictions
counselor Melissa Dorsett, who was assigned to Mother's case when Mother was
admitted to the hospital in December 2015. When Dorsett asked Mother what had
happened to bring about her hospitalization, Mother replied, "'I was fine until my
daughter decided to pursue a relationship with my husband.'" Dorsett testified that
Mother told her that C.K. and Bemis "had had sex" and that she had learned about "the
relationship" around the time of the blood moon. As a mandatory reporter, Dorsett
reported possible child abuse to the proper authorities on December 9 or 10, 2015.

The State also presented testimony from Emery, Pearman, Stevens, and Brown,
consistent with the facts set forth above. After the State rested, Bemis moved for a
directed verdict, which the district court denied. Bemis informed the district court that he
did not intend to testify, and the defense rested. The district court instructed the jury and
the parties gave their closing arguments. After deliberations, the jury found Bemis not
guilty of aggravated intimidation of a witness or victim, but the jury found him guilty of
the remaining charges.

At sentencing on August 18, 2017, the district court denied Bemis' motions for
new trial, for judgment of acquittal, and for departure sentences. The district court
sentenced Bemis to a controlling term of 268 months' imprisonment for the aggravated
indecent liberties with a child and indecent liberties with a child convictions, to run
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consecutive to 102 months' imprisonment for the electronic solicitation conviction and 12
months in the county jail for violating the protective order. Bemis timely appealed each
case and this court consolidated the two appeals.

IS K.S.A. 2018 SUPP. 60-455(d) UNCONSTITUTIONAL?

Bemis first claims that K.S.A. 2018 Supp. 60-455(d) violates his due process
rights under the United States and Kansas Constitutions. After setting forth his arguments
at length, Bemis "acknowledges that another panel of this Court has rejected this claim,"
citing State v. Boysaw, 52 Kan. App. 2d 635, 372 P.3d 1261 (2016), aff'd 309 Kan. 526,
439 P.3d 909 (2019). The State asserts that this court should follow the well-reasoned
logic of Boysaw and conclude that K.S.A. 2018 Supp. 60-455(d) is constitutional.

Bemis also acknowledges that he did not challenge the constitutionality of K.S.A.
2018 Supp. 60-455(d) in district court. But he asserts that consideration of the issue is
necessary to serve the ends of justice or to prevent the denial of fundamental rights. See
State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). The State concedes that this
court has previously considered this constitutional claim for the first time on appeal.
Thus, we will address the merits of Bemis' claim.

Determining a statute's constitutionality is a question of law subject to unlimited
review. State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127, cert. denied 137 S.
Ct. 226 (2016).

Bemis asserts that this court wrongly decided the issue in Boysaw. But after the
briefs were filed, the Kansas Supreme Court issued its opinion affirming this court's
decision in Boysaw and holding that "K.S.A. 2018 Supp. 60-455(d) does not violate
federal constitutional protections." Boysaw, 309 Kan. at 536. The Kansas Supreme Court
declined to decide whether K.S.A. 2018 Supp. 60-455(d) violated any protections
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provided under the Kansas Constitution Bill of Rights, finding that "Boysaw did not give
the state constitutional argument sufficient substance for the district court to consider it,
and, on appeal, he conflates the state argument with the federal one," leading our
Supreme Court to deem the issue waived. 309 Kan. at 536-37.

Our Supreme Court's decision in Boysaw disposes of Bemis' federal constitutional
challenge to K.S.A. 2018 Supp. 60-455(d). Neither Bemis nor the State filed a letter of
supplemental authority as authorized by Kansas Supreme Court Rule 6.09 (2019 Kan. S.
Ct. R. 39) to notify this court of this recently issued controlling authority. But this court is
duty bound to follow Kansas Supreme Court precedent absent some indication that the
court is departing from its earlier position. See State v. Hall, 298 Kan. 978, 983, 319 P.3d
506 (2014). Thus, Bemis' federal constitutional challenge fails.

Bemis also raised a state constitutional challenge to K.S.A. 2018 Supp. 60-455(d),
and that challenge is not controlled by our Supreme Court's decision in Boysaw. That
said, the Kansas Supreme Court in Boysaw stated the following, albeit in dicta:

"As possible considerations for any future argument on this [Kansas
constitutional] issue, we note that the Kansas Constitution Bill of Rights, including
sections 10 and 18, was largely modeled on the Ohio Constitution. Ohio has a statute that
resembles K.S.A. 2018 Supp. 60-455 in allowing evidence of prior misconduct for the
purpose of showing motive, intent, absence of mistake, or scheme or plan. Ohio does not,
however, have a statutory provision allowing such evidence strictly for the purpose of
demonstrating propensity. Furthermore, our cursory research fails to disclose any
common law exception in Ohio allowing evidence akin to 'lustful disposition' for
purposes of establishing propensity to commit sex crimes.
"We also note that section 18 of the Kansas Constitution Bill of Rights did not
create new rights but merely recognized systems of laws established prior to the adoption
of the Constitution.
"Historically, our courts have analyzed sections 10 and 18 as coextensive with
their federal counterparts.
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"Any future challenge to the admission of propensity evidence under K.S.A.
2018 Supp. 60-455(d) that is based on state constitutional provisions will need to explain
why this court should depart from its long history of coextensive analysis of rights under
the two constitutions. [Citations omitted.]" 309 Kan. at 537-38.

The Kansas Supreme Court issued its decision in Boysaw on April 19, 2019.
Despite the more than four months that have now passed, Bemis has failed to heed the
warning in Boysaw. His appellate brief asserts that this court has the authority to interpret
differently similar provisions of the Kansas and federal Constitutions, but it contains no
explanation of "why this court should depart from its long history of coextensive analysis
of rights under the two constitutions." See Boysaw, 309 Kan. at 538. In fact, Bemis'
appellate brief develops no specific argument as to why he is entitled to greater protection
under the Kansas Constitution than he is afforded under the federal Constitution. And he
has not filed a motion for supplemental briefing to provide such an explanation to this
court. As our Supreme Court noted in Boysaw, "[w]hen a party does not preserve or
adequately brief an issue, we deem it waived." 309 Kan. at 537. Thus, we deem Bemis'
state constitutional argument waived for inadequate briefing.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT BEMIS' CONVICTION
OF ELECTRONIC SOLICITATION

Bemis claims there was insufficient evidence to support his conviction of
electronic solicitation of a child. The State responds that when the evidence is viewed in
the light most favorable to the State, sufficient evidence supports Bemis' electronic
solicitation conviction.

"To meet the sufficiency standard, evidence must support each element of a
crime. When challenged, an appellate court reviews the evidence's sufficiency by
'"looking at all the evidence in a light most favorable to the prosecution and determining
whether a rational factfinder could have found the defendant guilty beyond a reasonable
doubt."' 'In doing so, the appellate court generally will "not reweigh evidence, resolve
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evidentiary conflicts, or make witness credibility determinations."' [Citations omitted.]"
State v. Parker, 309 Kan. 1, 13-14, 430 P.3d 975 (2018).

"Electronic solicitation is, by means of communication conducted through the
telephone, internet or by other electronic means, enticing or soliciting a person, whom the
offender believes to be a child, to commit or submit to an unlawful sexual act." K.S.A.
2018 Supp. 21-5509(a). Bemis contends and the State concedes that to support the charge
of electronic solicitation, the prosecutor relied on Bemis' text message to C.K. that stated:
"'I remember waking up and having a delicious breakfast of [C.K.] in the morning. What
happened to that?'"

Bemis first argues that there was insufficient evidence that he "enticed" or
"solicited" C.K. to commit or submit to an unlawful sexual act. The jury was not
instructed on a specific definition of "entice" or "solicit." Bemis correctly points out that
"solicit" is statutorily defined, in the context of the criminal code, to mean "command,
authorize, urge, incite, request or advise." K.S.A. 2018 Supp. 21-5111(cc).

Bemis asserts that the text in question contains no language commanding,
authorizing, urging, inciting, requesting, or advising C.K. to commit or submit to any
unlawful sexual act, so there was insufficient evidence to support his conviction of
electronic solicitation. The State responds that when considered in the context of the rest
of the evidence presented at trial, it is a reasonable inference that the question, "What
happened to that?" was a request that C.K. submit to a future unlawful sexual act of
indecent liberties with a child.

The texts reproduced in State's Exhibit 5 show the following conversation between
C.K. and Bemis between 11:18 p.m. and 11:27 p.m. on December 27, 2015:

C.K.: "I ate some bad food and now I have a stomach ache"
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Bemis: "Aww. I'll rub you down with lotion and make ya feel all better."
C.K.: "I have been super home sick since we picked up [C.K.'s friend]. And I
would love that."
Bemis: "I promise to make it up to ya."
C.K.: "[Smiley face emoji]"
Bemis: "I'll start on your back rubbing in the lotion. Nice and soft."
C.K.: "Don't say anything that might upset anyone"
Bemis: "Are you gettin upset"
C.K.: "No[.] Someone else might get upset"
Bemis: "I delete all my texts from this phone"
C.K.: "Just in case[.] Ok? We don't need anyone unhappy with us"
Bemis: "No one knows I have this phone[.] Ok. I will bow down to my queen[.]"

Over the next 48 hours, Bemis and C.K. exchanged over 90 text messages, many
of which involved assertions of their love. On December 29, 2015, at 11:40 p.m., Bemis
sent C.K. a text that said: "[C.K.] I love you to pieces. I want you so bad I hurt." He sent
a second text that said, "Goodnight." The next text message occurred at 7:54 a.m. on
December 30, 2015, and it was the text referring to "a delicious breakfast of [C.K.] in the
morning. What happened to that?"

Taken in context and considered in the light most favorable to the State, a
reasonable juror could infer that Bemis' reference to "a delicious breakfast of" C.K.
followed by the question, "What happened to that?" was a reference to prior unlawful
sexual activity and a request that C.K. submit to the same in the future. Thus, the State
presented sufficient evidence that Bemis' text message constituted solicitation or
enticement of C.K. as needed to support the conviction of electronic solicitation.



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Alternative means argument

Bemis also raises an alternative means argument. "An alternative means case
arises when 'a statute—and any instruction that incorporates it . . . list[s] distinct
alternatives for a material element of the crime.'" State v. Williams, 303 Kan. 750, 757,
368 P.3d 1065 (2016). The State failed to respond to Bemis' alternative means claim.

As set forth above, "[e]lectronic solicitation is, by means of communication
conducted through the telephone, internet or by other electronic means, enticing or
soliciting a person, whom the offender believes to be a child, to commit or submit to an
unlawful sexual act." K.S.A. 2018 Supp. 21-5509(a). Bemis does not argue that the
statutory definition of electronic solicitation creates an alternative means of committing
the crime. Rather, he focuses on the district court's jury instruction, which reads:

"The defendant is charged in Count 5 with electronic solicitation of a child. The
defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant by means of communication conducted through the telephone,
internet, or by other electronic means enticed or solicited [C.K.] to commit or submit to
an act of indecent liberties with a child.
"2. The defendant did it intentionally or knowingly.
"3. [C.K.] was a person whom the defendant believed was 14 or 15 years old.
"4. This act occurred on or about the 30th day of December, 2015, in Sedgwick
County, Kansas.
"The act of indecent liberties with a child means engaging in either of the
following acts with a child who is 14 or 15 years old: (1) any lewd fondling or touching
of the person of either the child or the offender, done or submitted to with the intent to
arouse or satisfy the sexual desires of either the child or the offender or both; (2)
soliciting the child to engage in any lewd fondling or touching of the person of another
with the intent to arouse or satisfy the sexual desires of the child, offender or another.
"The State must prove that the defendant enticed or solicited [C.K.] to commit or
submit to an act of indecent liberties with a child intentionally or knowingly.
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"A defendant acts intentionally when it is the defendant's desire or conscious
objective to do the act complained about by the State.
"A defendant acts knowingly when the defendant is aware of the nature of his
conduct that the State complains about."

Bemis argues that the portion of the jury instruction defining indecent liberties
with a child creates two alternative means of committing the crime: (1) any lewd
fondling or touching of the person of either the child or the offender, done or submitted to
with the intent to arouse or satisfy the sexual desires of either the child or the offender or
both; or (2) soliciting the child to engage in any lewd fondling or touching of the person
of another with the intent to arouse or satisfy the sexual desires of the child, offender, or
another. Bemis asserts that the State failed to present any evidence of the second
alternative means of committing the crime of indecent liberties with a child, i.e., that he
enticed or solicited C.K. to engage in lewd fondling or touching with a third party.

The Kansas Supreme Court has recognized that identical language in the statute
defining aggravated indecent liberties with a child creates alternative means of
committing that crime. See State v. Brown, 295 Kan. 181, 200-01, 284 P.3d 977 (2012).
Also, the Kansas Supreme Court has long interpreted the phrase "fondling or touching of
the person of another" to mean fondling or touching of a third party who is neither the
child nor the offender. See State v. Johnson, 283 Kan. 649, 653, 156 P.3d 596 (2007).

Bemis directs the court to State v. Herrera, 41 Kan. App. 2d 215, 223-24, 202
P.3d 68 (2009), in which this court noted the holding from Johnson and applied it to
analyze whether the evidence in the case before it was sufficient to sustain a conviction
of aggravated indecent liberties with a child under the statutory subsection that prohibits
"solicit[ing] a child to engage in lewd fondling or touching of a third party." The Herrera
court held that the evidence in that case was insufficient to support the conviction
because "[t]he State presented no evidence that [the defendant] had solicited [the victim]
17

to engage in any activity that might be construed as lewd fondling or touching of any
person other than [the defendant]." 41 Kan. App. 2d at 224.

Similarly, the State presented no evidence here that Bemis solicited C.K. "to
engage in any lewd fondling or touching of the person of another," and there was no
evidence that a third party was involved in Bemis' sexual crimes against C.K. Thus,
Bemis argues that there was insufficient evidence to support one of the alternative means
of committing the crime of indecent liberties with a child. Because indecent liberties with
a child was the alleged "unlawful sexual act" that Bemis solicited C.K. to commit, Bemis
argues there was insufficient evidence to support his conviction of electronic solicitation.

We begin our analysis by ascertaining whether electronic solicitation is an
alternative means crime. In Brown, our Supreme Court set forth the following test for
analyzing an alternative means claim:

"When faced with an alternative means question, a court must determine for each
statute what the legislature's use of a disjunctive 'or' is intended to accomplish. Is it to list
alternative distinct, material elements of a crime—that is, the necessary mens rea, actus
reus, and, in some statutes, a causation element? Or is it merely to describe a material
element or a factual circumstance that would prove the crime? The listing of alternative
material elements, when the list is incorporated into an elements instruction, creates an
alternative means issue demanding super-sufficiency of the evidence. But merely
describing a material element or a factual circumstance that would prove the crime does
not create alternative means, even if the description is included in a jury instruction." 295
Kan. 181, Syl. ¶ 7.

The Brown court also recognized that "[o]ptions within a means—that is, the
existence of options that do not state a material, distinct element—do not demand
application of the super-sufficiency requirement. [Citations omitted.]" 295 Kan. at 197.
One potential type of options within a means recognized—but not applied—in Brown
18

was "purely definitional statutory language that elaborates on or describes a material
element." 295 Kan. at 198. Bemis' claim ignores the fact that his asserted alternative
means error is not based on the statutory definition of electronic solicitation; it is based
only on the definitional language in the jury instruction that describes an element of the
crime—in this case the unlawful sexual act that Bemis enticed C.K. to commit.

In State v. Waldrup, 46 Kan. App. 2d 656, 263 P.3d 867 (2011), rev. denied 296
Kan. 1135 (2013), the defendant was charged with two counts of sale of cocaine. Along
with instructing the jury on the elements of the crime of sale of cocaine, the district court
also defined "sale" to mean "'barter, exchange, or gift, or an offer to do any of these
things.'" 46 Kan. App. 2d at 663. This court found that the definition of the term "sale"
was an "explanatory definition" that merely clarified the word "sale" as opposed to a
"fundamental definition" that defines the charged crime itself. 46 Kan. App. 2d at 668-69.
Thus, this court held that in a prosecution of the defendant for the sale of cocaine, the
district court's definitional jury instruction of the term "sale" did not create alternative
means of committing the crime. 46 Kan. App. 2d at 669.

Here, to find Bemis guilty of electronic solicitation of a child, the jury had to agree
that Bemis enticed or solicited C.K. to commit or submit to an act of indecent liberties
with a child. This is not an alternative means crime under the test set forth in Brown. The
mere fact that the district court defined "indecent liberties with a child" in a manner that
included alternative means did not require the State to present substantial evidence
supporting each alternative means of committing that separate crime. Coincidentally,
Bemis was also charged with the crime of indecent liberties with a child and the jury
instruction on that charge did not include alternative means of committing the crime.

Although not directly on point, further support for the conclusion that the jury
instruction here did not create alternative means may be found in State v. Butler, 307
Kan. 831, 416 P.3d 116 (2018), and State v. Cottrell, 310 Kan. ___, 445 P.3d 1132
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(2019). Butler was charged with conspiracy to commit aggravated robbery. To prove
conspiracy, the State must prove two elements: "'"(1) An agreement between two or more
persons to commit or assist in committing a crime and (2) the commission by one or more
of the conspirators of an overt act in furtherance of the object of the conspiracy."'
[Citation omitted.]" 307 Kan. at 842. The Butler court noted that the statute defining
conspiracy "does not list alternative ways a fact-finder could conclude the defendant
committed an overt act in furtherance of the conspiracy; it simply states a conviction
cannot occur unless an overt act is alleged and proved," and that Butler's asserted
"alternative means" occurred only in the jury instruction. 307 Kan. at 842. The Kansas
Supreme Court held that "'[t]hat alone indicates the legislature never intended for cases
like [defendant's] to be alternative means cases,'" and the statute itself did not set forth
alternative means for committing an overt act. 307 Kan. at 842.

Butler argued, however, that the jury instruction, which identified the overt acts
alleged as "discussing and planning the aggravated robbery, arriv[ing] at the location, and
carr[ying] out the plan," created alternative means. 307 Kan. at 842-43. First, the Kansas
Supreme Court noted that the instruction used the word "and," which indicated that the
jury must find all of these overt acts in order to convict. 307 Kan. at 843. Although the
court thus concluded that Butler was not an alternative means case, it specifically pointed
out that it was not analyzing whether prior decisions in which the court "expressed
concern" over whether an alternative means issue would arise if a jury was given a
disjunctive list of alleged overt acts remained valid after Brown. 307 Kan. at 844.

Our Supreme Court undertook that analysis in Cottrell. 445 P.3d at 1140-42. After
summarizing the relevant holding in Butler, the Cottrell court held:

"Following Brown, we affirm that only the language of a statute can create
alternative means for a crime. If the statute lists 'alternative, distinct, material elements' of
a crime, then it creates alternative means. But a jury instruction that lists descriptions of
20

how a material element might be satisfied does not, on its own, create alternative means.
To hold otherwise would permit a jury instruction to override legislative intent and
effectively revise the criminal code.
"Thus, we affirm that the conspiracy statute does not set forth alternative means
for committing an over act. We also overrule [a prior case to the contrary] and hold that a
jury instruction listing more than one overt act in furtherance of a conspiracy does not
create alternative means. Instead, such an instruction merely describes the factual
scenarios that could prove the material element of an overt act." 445 P.3d at 1141-42.

Cottrell makes clear that the focus of alternative means analysis in Kansas is on
the statutory language of the crime of conviction. Bemis has not filed a Rule 6.09 letter
addressing the effect of Cottrell, and he does not argue that the statutory language of the
electronic solicitation statute created an alternative means issue in his case. Thus, the jury
instruction language Bemis now challenges merely describes the factual scenarios that
could prove that Bemis solicited or enticed C.K. to engage in an unlawful sexual act.
Under Cottrell, this is not an alternative means case.

Finally, even if there was an alternative means error created by the jury instruction
on the charge of electronic solicitation, we submit that any error was harmless. The State
presented absolutely no evidence and made no argument that Bemis solicited C.K. to
engage in any lewd fondling or touching of a third party, so there could not have been
any confusion by the jury on how Bemis committed the crime of indecent liberties with a
child—which in turn was the unlawful sexual act supporting the electronic solicitation
charge. An alternative means error is harmless when there is substantial evidence of one
alternative means of committing the crime but no evidence or argument regarding another
means and thus no possibility of jury confusion. See Brown, 295 Kan. at 216 (Moritz, J.,
concurring); State v. Shaw, 47 Kan. App. 2d 994, 1010, 281 P.3d 576 (2012), rev. denied,
297 Kan. 1255 (2013) (Malone, J., concurring). Although we need not reach the issue of
harmless error in this case, we respectfully submit that the Kansas Supreme Court should
21

reevaluate its holding in State v. Wright, 290 Kan. 194, 205, 224 P.3d 1159 (2010), that
an alternative means error can never be harmless.

SENTENCING ISSUE

Finally, Bemis claims the district court violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution, as set forth in Apprendi v.
New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it
increased his sentence based on his criminal history without requiring the State to include
the criminal history in the charging document and prove it beyond a reasonable doubt to a
jury. Bemis concedes that the Kansas Supreme Court has rejected his argument; he raises
it to preserve it for federal review. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781
(2002). This court is duty bound to follow Kansas Supreme Court precedent absent some
indication that the court is departing from its earlier position. See Hall, 298 Kan. at 983.
There is no such indication here, so Bemis' sentencing issue fails.

Affirmed.