State v. Boyd

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NOT DESIGNATED FOR PUBLICATION

No. 118,925

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIAM GREGORY BOYD JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed May 31, 2019.
Convictions affirmed, sentences vacated, and remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before LEBEN, P.J., GREEN and POWELL, JJ.

PER CURIAM: William Gregory Boyd Jr. directly appeals his convictions and
sentences, arguing: (1) the prosecutor committed prosecutorial error during voir dire; (2)
the district court clearly erred in failing to give a limiting instruction with the admission
of his prior bad acts or other crimes evidence under K.S.A. 60-455; (3) the district court
erred in ordering him to pay the victim restitution; and (4) the district court abused its
discretion in denying him a dispositional departure to probation. We agree with Boyd that
he was entitled to have the district court consider the merits of his downward
dispositional departure motion at sentencing, and because the record is unclear to us
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whether that was done, we vacate Boyd's sentence and remand for that purpose. We
affirm the district court in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

The incidents resulting in Boyd's convictions occurred between August 2011 and
May 2013. Boyd moved into and lived with V.D.—his girlfriend—at her home in 2010.
V.D. lived with her daughter, S.D.A., and her youngest son. Boyd lived there for about
five years until the relationship ended.

S.D.A. was a freshman in high school in 2011. Around the start of the school year,
Boyd inappropriately touched S.D.A. while the two wrestled or play/fought. S.D.A.
thought Boyd had accidentally touched her—she thought he might have touched her
breast—and then he got between her legs and kissed her vaginal area over her clothing.
Around Christmas of 2011, S.D.A. and Boyd were in the basement, and Boyd performed
oral sex on S.D.A. S.D.A. stated she did not want it to happen, but he would start
suggesting and touching her; she would tell him to stop, but he continued.

S.D.A. stated Boyd performed oral sex on her a couple more times, and he then
asked her and she performed oral sex on him. When S.D.A. was still 14 years old, she
had sexual intercourse with Boyd. S.D.A. stated that it started with oral sex, and he then
unzipped his pants and put his penis inside her vagina. S.D.A. estimated she had sexual
intercourse with Boyd over 100 times, and it would sometimes occur between two to five
times a week. S.D.A. stated the sexual relationship continued throughout her time in high
school and after Boyd moved out of the house. S.D.A. stated that Boyd had told her that
he was addicted to her and he would release her when she turned 18.

Boyd's biological daughter S.B.—who is about one month older than S.D.A.—
stated that when she was 15 years old she saw S.D.A. performing oral sex on Boyd and,
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another time, witnessed Boyd performing oral sex on S.D.A. She did not tell anyone
about what she saw until the police contacted her when she was 16 or 17 years old.
Overland Park Police Department Officer Casey Shearer stated S.B. informed him she
was 17 years old when she observed Boyd and S.D.A., but S.B. testified that she had
incorrectly told police that she was 17 years old when she witnessed the two events.

S.D.A. did not disclose or admit to the sexual relationship with Boyd until after
Boyd moved out in 2015 and her mother confronted her about Boyd. V.D. stated she
grew more suspicious when S.D.A. stayed over at Boyd's house until 3 a.m. one night
and she confronted S.D.A. about a text message from Boyd. S.D.A. told her mother that
she had deleted the text message but later admitted that she had had a relationship with
Boyd that started during her freshman year in high school. S.D.A. testified she did not
know why she did not tell her mother before and that she felt ashamed and embarrassed.

After S.D.A. told V.D., the two went to the police station. Upon speaking with
police, S.D.A. agreed to undergo a sexual assault examination. However, once S.D.A.
spoke with a nurse at the hospital, S.D.A. declined the examination because she had taken
a shower after the last incident and did not believe the nurse could recover any evidence.
Shearer testified that Boyd denied having any sexual contact with S.D.A. during an
interview and stated S.D.A. was like a daughter to him.

The State later charged Boyd with one count of aggravated indecent liberties with
a child in violation of K.S.A. 2012 Supp. 21-5506(b)(1) and one count of criminal
sodomy in violation of K.S.A. 2012 Supp. 21-5504(a)(3). During the opening statements
at trial, defense counsel argued that S.D.A. had a troubled upbringing and that she told a
"story" about an alleged sexual relationship with Boyd to permanently remove Boyd from
the house because of a pattern of instability in her life. At trial, S.D.A. denied making up
a story so that Boyd would not come back to the house.

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On cross-examination, V.D. confirmed it was a part of S.D.A.'s life to see Boyd
leave and reenter the house. V.D. confirmed that Boyd often yelled at and was
argumentative with people and that she broke up with Boyd because of his alcohol
problems. In addition, defense counsel questioned and V.D. confirmed that in 2011 the
police were called and Boyd went to jail because a fight occurred where Boyd choked
S.D.A. V.D. and S.B. both confirmed that, shortly before V.D. broke up with Boyd in
2015, S.B. called the police and Boyd was taken to jail because of his disorderly conduct.
S.D.A. admitted that after Boyd had moved out of the house she gave him rides to his
court dates resulting from the disorderly conduct.

After the State's presentation of evidence, the defense rested. In closing, defense
counsel challenged the lack of evidence, argued S.D.A.'s story was not true, and
contested all of the witnesses' credibility. The jury convicted Boyd of committing one
count of criminal sodomy of a child who is 14 or more years of age but less than 16 years
of age, and one count of aggravated indecent liberties with a child for engaging in sexual
intercourse with a child who is 14 or more years of age but less than 16 years of age.

Before sentencing, Boyd moved for a downward dispositional departure. The
presentence investigation report (PSI) indicated that S.D.A.'s victim impact statement
requested restitution for a lost Pell grant that she needed to repay in the amount of
$1,248.34. According to the PSI, S.D.A. lost the grant because she was unable to
complete college due to the trauma caused by Boyd's actions. At sentencing, the district
court denied Boyd's departure motion and sentenced him to a controlling 125-month
prison term. The district court also awarded S.D.A. $1,248.34 in restitution upon finding
S.D.A. lost the Pell grant as a result of the psychological issues she endured from Boyd's
actions.

Boyd timely appeals.

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I. DID THE STATE COMMIT PROSECUTORIAL ERROR DURING VOIR DIRE?

Boyd argues the prosecutor committed prosecutorial error by destroying the jury's
power of nullification during voir dire. The State argues that the prosecutor's statements
were correct statements of the law.

A. Standard of Review

Boyd concedes he did not object to the prosecutor's comments during voir dire.
Even so, a defendant may raise prosecutorial error claims without a contemporaneous
objection at trial for comments made during voir dire, opening statements, and closing
argument. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012). An appellate court
uses a two-step process to evaluate claims of prosecutorial error. First, we determine
whether error occurred and, if so, whether there was prejudice. In determining whether
error occurred, we "must decide whether the prosecutorial acts complained of fall outside
the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a
conviction in a manner that does not offend the defendant's constitutional right to a fair
trial." State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). If prosecutorial error is
found, we then determine whether the error prejudiced the defendant's right to a fair trial.
Evidence of prejudice is evaluated under the traditional constitutional harmless error
inquiry established in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967). Sherman, 305 Kan. at 109. Our Supreme Court has clarified that

"prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt
that the error complained of will not or did not affect the outcome of the trial in light of
the entire record, i.e., where there is no reasonable possibility that the error contributed to
the verdict.' State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 565
U.S. 1221 (2012)." 305 Kan. at 109.

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B. Did the State commit prosecutorial error?

The prosecutor made the following statement during voir dire:

"[A] couple of legal principles, your job in this case is multifold, but one of them is to
follow the law.

"And so let's say this was a marijuana case, and you are adamant that marijuana
should be legal in the state of Kansas, and you are attending marijuana rallies attempting
to go the way of Colorado and some of the other states.

"At the end of the day you would get an instruction from the Court saying if you
find that the Defendant possessed marijuana, you must find him guilty if you find it
beyond a reasonable doubt.

"You may disagree with that law, but does anyone here feel that if they're given
the law, that they're going to vote contrary to the law just because they don't agree with
the law? Does that make sense? I see no hands.

"So the point is that you have to follow the law. You're going [to] take an oath to
follow the law. If you want to change the law, it's not in the jury box; it's in the
legislature. Does anyone disagree with that concept? I see no hands." (Emphases added).

Our Supreme Court has stated:

"The purpose of voir dire is to enable the parties to select competent jurors who
are without bias, prejudice, or partiality. The nature and scope of the voir dire
examination is generally entrusted to the sound discretion of the trial court. In
determining whether the trial court has taken sufficient measures to assure that the
accused is tried by an impartial jury free from outside influences, appellate courts
independently evaluate the circumstances. [Citation omitted.]" State v. Robinson, 306
Kan. 431, 444, 394 P.3d 868 (2017).

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Our Supreme Court has also explained that the "'[t]reatment of legal points in the course
of voir dire examination should be strictly confined to those inquiries bearing on possible
bias in relation to the issues of the case.'" State v. Simmons, 292 Kan. 406, 412, 254 P.3d
94 (2011) (quoting ABA Standards for Criminal Justice, Prosecution Function and
Defense Function, Standard 3-5.3[c] [3d ed. 1993]).

"Jury nullification is defined as:

"'A jury's knowing and deliberate rejection of the evidence or refusal to apply the
law either because the jury wants to send a message about some social issue that is larger
than the case itself or because the result dictated by law is contrary to the jury's sense of
justice, morality, or fairness.' [Citation omitted.]" Silvers v. State, 38 Kan. App. 2d 886,
888, 173 P.3d 1167, rev. denied 286 Kan. 1180 (2008).

While jurors have "the raw physical power to disregard both the rules of law and the
evidence in order to acquit a defendant," a juror has a duty "to accept the rules of law
given to it in the instructions by the court, apply those rules of law in determining what
facts are proven and render a verdict." State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510
P.2d 153 (1973). Moreover, "[w]hen the trial is to a jury, questions of law shall be
decided by the court and issues of fact shall be determined by the jury." K.S.A. 22-
3403(3). Kansas law also requires jurors to take an oath: "The jurors must swear or affirm
to try the case conscientiously and return a verdict according to the law and the
evidence." K.S.A. 2018 Supp. 60-247(d).

In State v. Smith-Parker, 301 Kan. 132, 163, 340 P.3d 485 (2014), the district
court instructed the jury: "'If you do not have a reasonable doubt from all the evidence
that the State has proven murder in the first degree on either or both theories, then you
will enter a verdict of guilty.'" On appeal, the defendant argued the instruction should
have used the word "should" instead of "will." 301 Kan. at 163. Our Supreme Court
agreed and held that the words "'must'" and "'will' . . . fly too close to the sun of directing
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a verdict for the State. A judge cannot compel a jury to convict, even if it finds all
elements proved beyond a reasonable doubt." 301 Kan. at 164.

Subsequently, in State v. Allen, 52 Kan. App. 2d 729, 733, 372 P.3d 432 (2016),
rev. denied 306 Kan. 1320 (2017), the panel considered whether "should" was a synonym
for "must" when reviewing an alleged nullification error in jury instructions on
reasonable doubt: "'If you have no reasonable doubt as to the truth of each of the claims
required to be proved by the State, you should find the defendant guilty.' (Emphasis
added.)" In applying Smith-Parker, the Allen panel held that there was no instructional
error and noted that "'unlike the words must, shall, and will, the word should does not
express a mandatory, unyielding duty or obligation; instead, it merely denotes the proper
course of action and encourages following the advised path.' [Citation omitted.]" 52 Kan.
App. 2d at 735.

Boyd argues that Allen and subsequent decisions such as State v. Stansbury, No.
117,430, 2018 WL 1659933 (Kan. App.) (unpublished opinion), rev. denied 308 Kan.
1601 (2018), were wrongly decided. Boyd contends we should find the prosecutor's
remarks during voir dire—"So the point is that you have to follow the law. You're going
[to] take an oath to follow the law. If you want to change the law, it's not in the jury box;
it's in the legislature." (Emphasis added.)—were misstatements of the law under Smith-
Parker.

Other panels of this court have rejected similar arguments and have held that such
statements made by a prosecutor during voir dire—that jurors must follow the law as
instructed by the court—were proper. See State v. Alvarez, No. 112,637, 2016 WL
1169395, at *8 (Kan. App. 2016) (unpublished opinion); see also State v. Patrick, No.
116,660, 2018 WL 4373053, at *10 (Kan. App. 2018) (unpublished opinion) (finding
prosecutor's statement that jurors must follow law not improper during voir dire), rev.
denied 309 Kan. ___ (April 29, 2019); State v. Spalding, No. 114,561, 2017 WL
9
1433513, at *7 (Kan. App.) (unpublished opinion) (same); State v. Cuellar, No. 112,535,
2016 WL 1614037, at *3 (Kan. App. 2016) (unpublished opinion) (same).

In Alvarez, the prosecutor made statements similar to those Boyd complains of.
Alvarez argued that the prosecutor's statements during voir dire were prosecutorial error
because they diluted the jury's right of nullification.

"'Now, explained—[we] explained about your job earlier where you all are
required to look at the evidence that is presented in court, take the instructions that the
Judge will give you and to decide from those facts or evidence that's presented what your
verdict is gonna be. Now, unfortunately, I don't make the law. None of us make the law,
at least I don't think in this room.

"'Does everyone understand that even if you don't agree with the laws, drug laws,
any type of law, that the only way to fix that is to go to your legislature, go to your
Congress person to champion them to make a different law? It's not here in the
courtroom. Does everyone understand that? Can everyone agree that no matter what their
feelings are about drug law, drug cases [good] or bad, that they'll be able to set aside their
personal feelings in order to come with a fair verdict? Does everyone agree that they will
apply the law whether or not you agree with it? All right.'" 2016 WL 1169395, at *6-7.

The panel disagreed the statements amounted to prosecutorial error and, in doing
so, found Smith-Parker distinguishable. The panel reasoned the prosecutor's statements
during voir dire appeared to address the jurors' ability to apply the law and gauged the
potential jurors' bias. The use of the word "will" did not compare to its use in Smith-
Parker because the prosecutor used "will" as a question—not a statement—about the
jurors' ability to follow the oath. The panel found Smith-Parker dissimilar because the
judge made the statements after the close of evidence, while the prosecutor in Alvarez
asked the question before the jurors had heard any evidence or argument in the case. The
panel also found Alvarez' argument unpersuasive that the prosecutor misstated the law on
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jury nullification when inquiring "if the potential jurors understood that laws were
changed by the legislature, not in the courtroom." 2016 WL 1169395, at *7-8.

"[T]his argument mischaracterizes nullification. Jury nullification is a 'knowing and
deliberate rejection of the evidence or refusal to apply the law,' not to change the law.
(Emphasis added.) The prosecutor's statement was just a simple description of the
structure of our government and constitution. The legislature has the power to make and
change the laws; the executive branch has the power to enforce the laws; and the
judiciary has the power to interpret and apply the laws. The prosecutor did not make a
misstatement of law, and there was no prosecutorial misconduct. [Citations omitted.]"
2016 WL 1169395, at *8.

We find the reasoning in Alvarez persuasive. Here, the prosecutor appeared to
question the jurors' ability to follow the law and gauged the jurors' potential biases. The
prosecutor referenced the oath each juror must take under K.S.A. 2018 Supp. 60-
247(d)—"to try the case conscientiously and return a verdict according to the law and the
evidence"—and the prosecutor's questions occurred before any presentation of evidence
and argument. Although the statement at issue—that the jurors have to follow the law—
differs from Smith-Parker and Alvarez, the prosecutor did not misstate the law. Thus, no
prosecutorial error occurred.

II. DID THE DISTRICT COURT CLEARLY ERR IN NOT GIVING A LIMITING INSTRUCTION
UPON ADMISSION OF K.S.A. 60-455 EVIDENCE?

Boyd also argues the district court should have given a limiting instruction
concerning the use of his prior bad acts or other crimes evidence—the alleged prior
battery (choking) of S.D.A. and disorderly conduct which led to police intervention—as
required under K.S.A. 2018 Supp. 60-455. Boyd argues the district court committed clear
error in failing to instruct the jury to limit the consideration of the evidence to its proper
use and not to consider the evidence as proof of his propensity to commit criminal acts.
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The parties recognize that Boyd's failure to request a limiting instruction or to
object to the lack of a limiting instruction with the admission of K.S.A. 60-455 evidence
does not bar Boyd from contesting the issue for the first time on appeal but requires us to
review the instructional issue under the clearly erroneous standard. See State v. Breeden,
297 Kan. 567, 582-83, 304 P.3d 660 (2013).

"When error in the giving or failing to give a jury instruction is claimed, the court
analyzes whether the jury instruction is legally and factually appropriate and, if so,
whether the error is harmless. State v. Williams, 295 Kan. 506, Syl. ¶ 4, 516, 286 P.3d
195 (2012). But where the instruction error is raised for the first time on appeal, the
failure to give a legally and factually appropriate instruction will result in reversal only if
the failure was clearly erroneous. K.S.A. 2015 Supp. 22-3414(3); State v. Breeden, 297
Kan. 567, 581, 304 P.3d 660 (2013). To establish a clearly erroneous instruction error,
the defendant must firmly convince the court the jury would have reached a different
result without the error. Williams, 295 Kan. at 516." State v. Solis, 305 Kan. 55, 64-65,
378 P.3d 532 (2016).

The "admissibility of any and all other crimes and civil wrongs evidence will be
governed by K.S.A. 60-455." State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006).
Subject to exception, evidence of prior bad acts or other crimes evidence is inadmissible
to show a person's propensity to commit crimes. K.S.A. 2018 Supp. 60-455(a). But
evidence of prior bad acts or other crimes "is admissible when relevant to prove some
other material fact including motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident." K.S.A. 2018 Supp. 60-455(b). If a district
court admits prior bad acts or other crimes evidence, "the district judge must give a
limiting instruction informing the jury of the specific purpose for admission." 282 Kan.
39, Syl. ¶ 3. But a district court's failure to give a limiting instruction for the admission of
K.S.A. 60-455 evidence does not result in automatic reversal. 282 Kan. at 58.

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Preliminarily, the State points out and Boyd concedes that he primarily introduced
the prior bad acts or other crimes evidence on cross-examination or recross-examination
of the witnesses. In addition, Boyd concedes he elicited the witnesses' testimony about
his prior bad acts or other crimes evidence to support his theory of defense that S.D.A.
fabricated the allegations to permanently remove Boyd from the house.

Notably, the State does not argue that the invited error rule should apply to Boyd's
claim. Generally, the invited error doctrine bars litigants from complaining of an error on
appeal where he or she invited or prompted the error at the district court level. State v.
Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014); State v. Hargrove, 48 Kan. App. 2d
522, 531, 293 P.3d 787 (2013). In State v. Anthony, 282 Kan. 201, 145 P.3d 1 (2006), a
detective testified at the trial during defense's cross-examination about a prior threat
Anthony allegedly made against the victim. Anthony was convicted of the first-degree
premeditated murder of that victim. Our Supreme Court held the invited error rule
applied to bar Anthony's claim that the district court erred in failing to give a limiting
instruction for the admission of K.S.A. 60-455 evidence because the defense elicited the
improper evidence from the witness during cross-examination. 282 Kan. at 215.
Generally, since Anthony, some panels of this court have found the invited error doctrine
applies when the defense elicits the K.S.A. 60-455 evidence. See State v. Arnold, No.
99,834, 2009 WL 1140273, at *2-3 (Kan. App. 2009) (unpublished opinion); State v.
King, No. 95,088, 2007 WL 2043565, at *5 (Kan. App. 2007), aff'd 288 Kan. 333, 204
P.3d 585 (2009); see also State v. Weis, No. 113,069, 2016 WL 1169453, at *4 (Kan.
App. 2016) (unpublished opinion) (discussing but declining to apply invited error rule
where defense questions meant only to clarify witness' testimony, not elicit prior bad acts
evidence).

Here, defense counsel elicited the same prior bad acts or other crimes evidence
during cross- and recross-examination of the witnesses that Boyd now argues requires
reversal for the district court's failure to provide a limiting instruction. However, the State
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does not argue or brief whether the invited error doctrine bars this court from considering
the claim on appeal. Generally, issues inadequately briefed and points raised incidentally
in a brief but not argued therein are deemed waived or abandoned. State v. Tappendick,
306 Kan. 1054, Syl. ¶ 2, 400 P.3d 180 (2017).

Boyd acknowledges he used the evidence to assert his theory of defense that
S.D.A. fabricated the allegations to remove Boyd from the house because of her dislike
of his chaotic and inconsistent presence in her life. Boyd argues the district court should
have given a limiting instruction even though the evidence was admitted by the defense,
citing for support State v. Molina, 299 Kan. 651, 325 P.3d 1142 (2014). There, our
Supreme Court rejected an invited error argument:

"[T]he State . . . argues Molina waived entitlement to a prophylactic limiting instruction
by introducing the evidence as part of his defense. Although evidence of Molina's drug
possession and his intent to sell came in through the defense, the need for a limiting
instruction on other crimes evidence does not depend upon which party introduces the
evidence. Instead, as we held in Breeden, 'a trial court judge who admits K.S.A. 2012
Supp. 60-455(b) evidence must give a limiting instruction informing the jury of the
specific purpose for admission of the evidence in order to avoid error.' 297 Kan. at 579.
This is true regardless of which party proposes the evidence." 299 Kan. at 660.

Boyd's argument based on Molina may have merit. Nevertheless, even if we
assume error, the error does not require reversal. Boyd must firmly convince us the jury
would have reached a different verdict had the district court given a limiting instruction
for Boyd's other crimes evidence. Based on the verdict, the jury rejected this theory at
trial.

The evidence of Boyd's alleged battery and prior disorderly conduct did not show
that Boyd had a propensity to commit aggravated indecent liberties with a child and
criminal sodomy. See Breeden, 297 Kan. at 584 (finding under clear error review,
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Breeden's threatened violence to victim did not specifically show propensity to commit
sodomy). A properly worded limiting instruction would not have made a difference
because the State presented overwhelming evidence through S.D.A.'s and S.B.'s
testimony that Boyd committed the crimes. Thus, Boyd cannot show the district court's
failure to give a limiting instruction for the prior bad acts or other crimes evidence
requires reversal under the clear error standard.

III. WAS THE RESTITUTION AWARD CAUSALLY LINKED TO BOYD'S CRIMES?

Boyd's third contention of error on appeal asserts the district court erroneously
awarded restitution because his crimes are not causally connected to S.D.A.'s restitution
claim of $1,248.34 for a lost Pell grant.

A. Procedural Background

At Boyd's sentencing in December 2017, the district court found the PSI contained
S.D.A.'s witness impact statement requesting restitution of $1,248.34 for a lost Pell grant.

"'Over the last 4 years my relationship with my mother and little brother suffered because
of [Boyd's] manipulative tactics. I attended college and dropped out because of stress and
hop[e]lessness. Since everything has come out I've been admitted and discharged from
Shawnee Mission's mental hospital. I was diagnosed with PTSD, anxiety and depression,
and insomnia. I've struggled from nightmares, extreme depression, and thoughts of
suicide. Due to this keeping a job and clear head was hard to do."'

"[S.D.A.] is requesting restitution in the form of repayment of her Pell Grant. She
was unable to finish school due to the trauma caused by the defendant."

Boyd simply objected to restitution generally. The State argued Boyd did not
object to the amount but to whether S.D.A.'s claim qualified as restitution. Boyd
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confirmed he did not object to the amount or what made up the amount of restitution but
whether restitution was owed.

At the sentencing hearing, S.D.A. stated, "[T]he acts that I went through really
kind of tore my family apart, tore me apart. I've been diagnosed with PTSD, insomnia,
and depression." S.D.A. also read a poem that she wrote but made no statements relating
to restitution. The district court awarded S.D.A. restitution, stating:

"I will also find that the restitution requested by [S.D.A.] in the amount of
$1,248.34 can be quite logically and causally connected to the ongoing trauma not only
of this life that you put her into, but also as she continued to grapple with and continued
to suffer from your manipulations, your power and control over her, and that I think that
[S.D.A.'s] request very clearly sets out—it's stated it is the Pell grant that she lost as a
result of the psychological issues that she endured associated with your actions."

B. Standard of Review and Legal Standard

"'Issues regarding the amount of restitution and the manner in which it is made to the
aggrieved party are normally subject to review under an abuse of discretion standard. A
district judge's factual findings underlying the causal link between the crime and the
victim's loss are subject to a substantial competent evidence standard of review. And this
court has unlimited review over interpretation of statutes.' [Citations omitted.]" State v.
Martin, 308 Kan. 1343, 1349-50, 429 P.3d 896 (2018).

"'Substantial competent evidence is legal and relevant evidence a reasonable
person could accept to support a conclusion.'" State v. Talkington, 301 Kan. 453, 461,
345 P.3d 258 (2015). In reviewing for substantial competent evidence, "the appellate
court does not reweigh the evidence or assess the credibility of witnesses." State v. Doelz,
309 Kan. 133, 138, 432 P.3d 669 (2019).

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K.S.A. 2018 Supp. 21-6604(b)(1) requires a district court to base restitution in a
criminal case on the "damage or loss caused by the defendant's crime." Likewise, K.S.A.
2018 Supp. 21-6607(c)(2) states the district court may order a defendant—as a condition
of probation—to "make reparation or restitution to the aggrieved party for the damage or
loss caused by the defendant's crime." As a result, "'restitution for a victim's damages or
loss depends on the establishment of a causal link between the defendant's unlawful
conduct and the victim's damages.' [Citations omitted.]" State v. Alcala, 301 Kan. 832,
837, 348 P.3d 570 (2015).

Our Supreme Court recently adopted a new standard in State v. Arnett, 307 Kan.
648, 654-55, 413 P.3d 787 (2018):

"Generally, causation-in-fact requires proof that it is more likely than not that,
but for the defendant's conduct, the result would not have occurred.

"Legal cause limits the defendant's liability even when his or her conduct was the
cause-in-fact of a result by requiring that the defendant is only liable when it was
foreseeable that the defendant's conduct might have created a risk of harm and the result
of that conduct and any contributing causes were foreseeable. When causation is based on
a chain of events, an intervening cause may absolve the defendant of liability. However,
'[i]f the intervening cause is foreseen or might reasonably have been foreseen' by the
defendant, his or her conduct may still be considered to have proximately caused the
result.

. . . .

"Today we explicitly conclude that the causal link between a defendant's crime
and the restitution damages for which the defendant is held liable must satisfy the
traditional elements of proximate cause: cause-in-fact and legal causation. [Citations
omitted.]"

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Before Arnett, our Supreme Court reviewed whether a causal link was established
differently. The Alcala court provides a good example of the previous standard:

"[T]he realities of attributing the consequences of criminal conduct present a range of
possibilities for restitution—some more easily resolved than others. For example, losses
directly or immediately caused by criminal conduct, such as injuries to persons or
property, are clearly compensable as restitution. See Goeller, 276 Kan. at 582-83
(causation requirement met in DUI case to compensate victim for medical bills incurred
after collision with intoxicated defendant who drove his vehicle left of center); State v.
Sammons, 276 Kan. 574, 576-77, 78 P.3d 470 (2003) (restitution for value of tools stolen
and not recovered because victim would have use of the tools but for the theft).

"But the issue presented in this case resides somewhere toward the other end of
the spectrum—where the outcome has not been so clear because the losses were more
tangentially caused by the criminal conduct. Compare Hall, 298 Kan. at 991 (upholding
restitution for sexual assault victim's relocation expenses when defendant lived and
worked in same apartment complex and law enforcement advised victim to move for her
safety); Hand, 297 Kan. at 739-40 (increased insurance premium due to theft claim
against policy); and State v. Beechum, 251 Kan. 194, 202-03, 833 P.2d 988 (1992)
(upholding restitution award for costs of moving murder victim's child to child's other
parent); with State v. Hunziker, 274 Kan. 655, 657-58, 664-68, 56 P.3d 202 (2002)
(discretion abused by awarding victim's attorney fees for advising on court procedures
and preparation of a 'restitution booklet' detailing losses caused by vandalism)." 301 Kan.
at 837-38.

C. Is a remand necessary for the district court to review the issue under the
new standard?

Significantly, neither party requests a remand for the district court to conduct an
analysis under the Arnett standard. The parties also agree the proximate cause standard
applies to our review. The district court, however, did not have the Arnett court's
guidance at the time of its ruling.
18
In Arnett, our Supreme Court discussed whether to remand for a review under the
newly articulated standard but found a remand unnecessary because Arnett did not
dispute the factual findings; the Court of Appeals panel decided the issue as a matter of
law; and, while the ruling did not use the express proximate-cause terms, the language
supported that the district court made the cause-in-fact and the legal cause findings. 307
Kan. at 655-56.

However, in two later decisions, our Supreme Court did order a remand for the
district court to conduct a review under the Arnett standard. In State v. Futrell, 308 Kan.
128, 131-32, 418 P.3d 1262 (2018), the court remanded because the district court did not
explain its reasoning and a factual deficiency in the record prevented its independent
review. In State v. Martin, 308 Kan. 1343, 1352, 429 P.3d 896 (2018), the court
remanded because the district court failed to conduct a restitution hearing, the summary
holding applied an incorrect legal standard that did not determine whether Martin's
crimes caused all the damages, and the victim's itemized list of damages appeared to
include expenses incurred before the crimes—making the causal link finding to the
crimes improper.

The majority of another panel of this court in State v. Kraft, No. 117,658, 2018
WL 1884045, at *7 (Kan. App. 2018) (unpublished opinion), remanded the restitution
issue to the district court. In relevant part, Kraft was originally charged with domestic
battery and criminal restraint, following an altercation. The victim, Haley Fryback,
requested restitution for payment of medical and psychological bills. The State dropped
the domestic battery charge under the plea agreement and did not provide for payment of
restitution to the victim in that agreement. After sentencing, the district court awarded the
victim restitution in full upon finding the claimed losses were closely entwined with
Kraft's conviction for criminal restraint. On appeal, the panel majority held it could not
conduct a causation analysis under Arnett. Specifically, the majority found the medical
19
bills for the victim's physical injuries were arguably causally linked to Kraft's criminal
restraint but found:

"Fryback's claim for psychological treatment from the criminal restraint is more
problematic. Fryback attributed her inpatient treatment at Sovereign Health of California
to her dependency on Kraft and the fact that she was 'still very attached, and
romanticizing on him.' Fryback testified that her outpatient therapy at High Plains Mental
Health was the result of the long-term mental and physical abuse she had suffered during
her six-month relationship with Kraft. At the restitution hearing, the prosecutor conceded:
'This was not a single incident of abuse, but a long period of abuse, verbal, mental, and
physical abuse.' However, Kraft was convicted of one count of criminal restraint on May
12, 2016, not a pattern of such criminal conduct." 2018 WL 1884045, at *6.

The panel majority also found the district court's lack of explicit factual findings
and the fact the district court did not have the Arnett court's guidance in deciding the
issue required a remand. In pertinent part, the panel found that "it is difficult to discern a
'but for' relationship between her inpatient and outpatient counseling bills and Kraft's
single act of criminal restraint" because the district court did not expressly distinguish
between the medical and psychological bills. 2018 WL 1884045, at *6. The panel also
held that the lack of explicit findings prevented an independent substantial evidence
review of proximate cause under the Arnett standard. 2018 WL 1884045, at *7.

In her dissent, Chief Judge Arnold-Burger found a remand unnecessary based on
the district court's findings and Fryback's testimony describing the altercation:

"The district court judge correctly and specifically found that the criminal
restraint and the domestic battery were so closely entwined that he could not separate
them in terms of restitution. To bolster his conclusion, he noted the difficulty that the
psychiatrist had in separating the two. I have no trouble concluding that the judge's
decision was supported by substantial competent evidence. Clearly, in order to beat
Fryback, and prevent her from escaping his rage, he had to restrain her. He did this by the
20
psychological control he had exerted over Fryback during their relationship, as well as by
taking her car keys so she could not leave. He further prevented her from calling for help
or a ride by taking her phone. Also due to her restraint, there was a delay in getting her to
the hospital of at least two hours. Because it is more likely than not that had Kraft not
restrained her, Fryback would have fled the scene or called for help and avoided injury,
there is sufficient evidence to establish causation in fact. Second, it was foreseeable that
Kraft's conduct of restraining Kraft so that he could beat her, created a risk of harm and
the result of that conduct—serious physical and psychological injury to Fryback—were
foreseeable. It is clear to me that there is substantial competent evidence to support a
finding of legal causation. As the district court judge indicated, it is simply impossible to
separate the criminal restraint from the battery. The restraint was necessary to effectuate
the battery." 2018 WL 1884045, at *9.

The instant case does not directly fit into any of the above caselaw. Unlike Arnett,
Boyd disputes the factual findings supporting the district court's ruling. That said, a
factual discrepancy does not likely prevent an independent review of the issue. Unlike
Martin, the district court here granted restitution to S.D.A. for a loss she incurred after
Boyd's crimes. In comparison to Futrell, no similar factual discrepancy prevents an
independent review. S.D.A. requested restitution for a Pell grant she lost after suffering
psychological issues following Boyd's crimes. Last, unlike Kraft, the restitution issue
does not concern two separate claims that lack sufficient factual findings on each claim to
conduct a proximate cause review.

That said, Boyd's convictions more indirectly caused S.D.A.'s claimed loss. The
record does not set out a timeframe for when S.D.A. dropped out of college, lost the Pell
grant, and endured all her psychological or mental health problems. However, all the
experiences in S.D.A.'s victim impact statement occurred before August 2016 (the
completion date of the statement). The district court did not find S.D.A.'s inability to
finish college and her loss of the Pell grant stemmed from any particular psychological
issue but found Boyd's crimes caused all of S.D.A.'s psychological issues, which caused
21
her to lose the grant. As a result, we see no factual discrepancy requiring a remand for a
review under the Arnett standard.

The district court clearly stated its reasoning, holding Boyd's crimes were logically
and causally connected to S.D.A.'s loss because S.D.A. had endured psychological issues
caused by Boyd's crimes that resulted in the lost Pell grant. However, the district court
used language similar to the old standard under Alcala and made no express proximate
cause findings. Even so, the district court's findings still supported the conclusion that but
for Boyd's crimes S.D.A.'s psychological issues would not have occurred and the
resulting loss of the Pell grant was a foreseeable result of Boyd's criminal acts. See
Arnett, 307 Kan. at 656.

D. Does substantial evidence support the district court's finding of a proximate
cause between Boyd's crimes and S.D.A.'s claimed loss?

The district court held Boyd's offenses were logically and causally connected to
S.D.A.'s lost Pell grant. The district court also held S.D.A. established the Pell grant was
lost because of the psychological issues she endured from Boyd's actions.

On appeal, Boyd's principal argument is that no evidence supports S.D.A.'s
restitution claim. Boyd questions whether the record establishes that S.D.A. attended
college and lost a Pell grant. Boyd also briefly challenges whether S.D.A. could establish
the causal link between his crimes, S.D.A.'s mental health diagnoses, and her inability to
attend college without expert testimony.

A defendant must raise an objection to restitution to preserve the issue for appeal.
State v. Shank, 304 Kan. 89, 94, 369 P.3d 322 (2016). In general, issues not raised before
the district court cannot be raised on appeal. State v. Hunziker, 274 Kan. 655, 661, 56
P.3d 202 (2002); see State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). While
22
exceptions to the general rule exist, Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R.
34) requires an appellant to explain why an issue not raised below should be considered
for the first time on appeal. Our Supreme Court warned that litigants who fail to comply
with this rule do so at their own peril and that Rule 6.02(a)(5) would be strictly enforced.
State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014); State v. Godfrey, 301 Kan.
1041, 1044, 350 P.3d 1068 (2015).

The State correctly argues that Boyd lodged no objection to the PSI as establishing
S.D.A.'s claim of restitution. Boyd also lodged no objection to the reliability of S.D.A.'s
mental health evidence or that the restitution claim was unsupported by the evidence.
Instead, Boyd expressly limited his objection to whether his crimes caused S.D.A.'s
claimed loss or qualified as restitution. Thus, Boyd has failed to preserve his arguments
on appeal disputing the factual existence and the reliability of the evidence supporting
S.D.A.'s claimed loss. Also, Boyd does not explain why we should consider his
arguments for the first time on appeal as required by Rule 6.02(a)(5). Accordingly, we
find his arguments waived or abandoned.

As a result, we limit our review to whether S.D.A.'s lost Pell grant qualifies for
inclusion in the restitution order because Boyd's crimes caused her loss. In general, "the
question of whether an item claimed by the aggrieved party as loss qualifies for inclusion
in a restitution order because it was caused by the defendant's offense is a question of
law. An appellate court's review of conclusions of law is unlimited." Hunziker, 274 Kan.
655, Syl. ¶ 2. As stated above, we review the factual findings for substantial competent
evidence. See Martin, 308 Kan. at 1349.

Proof of causation at restitution hearings is reviewed under a "less stringent"
standard. See State v. Stanley, No. 116,614, 2017 WL 6542922, at *4 (Kan. App. 2017)
(unpublished opinion), rev. denied 308 Kan. 1600 (2018). Although reviewed under the
previous causation standard, State v. Jones, No. 111,078, 2015 WL 1947120 (Kan. App.
23
2015) (unpublished opinion), and State v. Phillips, No. 89,352, 2003 WL 22176026 (Kan.
App. 2003) (unpublished opinion), provide some helpful insight into the level of proof
required to establish causation in a restitution hearing.

In Phillips, 2003 WL 22176026, the defendant argued his two convictions of
attempted aggravated indecent liberties did not causally connect to his stepdaughter's (the
victim's) chiropractic bills. The panel disagreed, holding the evidence showed Phillips
had battered and sexually abused his stepdaughter for at least 14 years. His stepdaughter
testified Phillips had physically abused her since the age of 4; the sexual abuse started at
age 12 and ended when she moved out of the house at age 16. While she testified the
spinal injuries did not result from the sexual abuse, she stated Phillips hit her over the
head several times. The panel held: "It would be illogical to conclude that she received no
injuries from this abuse. Based on that connection, we conclude the victim's injuries were
caused by defendant's sexual attacks upon her, and the trial court did not err in ordering
the restitution in question." 2003 WL 22176026, at *1.

In Jones, 2015 WL 1947120, the defendant robbed a nine-year-old child of a
backpack containing gold jewelry in the presence of the child's mother. At sentencing, the
district court granted the Crime Victims' Compensation Board (CVCB) restitution for
both victims' later psychological counseling. On appeal, Jones argued the district court
erred in granting restitution. The panel disagreed:

"[B]oth J.G. and his mother explained to the district court how Jones' robbery of
J.G. in the presence of his mother had directly caused psychological damage to their
sense of security and emotional well being. Similar to the physical harm incurred by J.G.
which resulted in $655 worth of medical bills, the psychological harm sustained by J.G.
and his mother was directly caused by Jones' criminal conduct. The district court had a
substantial competent basis to find that the costs of psychological counseling were not
tangential but directly caused as a result of the crime committed by Jones. We hold the
24
district court did not abuse its discretion by awarding restitution to the CVCB for its costs
in providing psychological therapy to J.G. and his mother." 2015 WL 1947120, at *3.

Here, S.D.A. did not testify about her restitution claim at the hearing. But S.D.A.
completed a victim impact statement in August 2016, and the PSI quoted S.D.A.'s
statement that established she had received mental health diagnoses; suffered other
mental health-related issues; had been discharged from a mental health hospital; and had
attended college, dropped out, and lost a Pell grant. S.D.A. did not state the timeframe for
when all the above experiences occurred. But S.D.A. requested restitution for the
repayment of the Pell grant—totaling $1,248.34—because "[s]he was unable to finish
school due to the trauma caused by the defendant."

At the trial in August 2017, S.D.A. was 20 years old. S.D.A. testified the sexual
abuse started when she was 14 years old and continued throughout and after her time in
high school. In describing how the abuse began, S.D.A. stated she did not want the acts to
happen; she would tell Boyd to stop, but he would continue. S.D.A. stated that Boyd told
her that he was addicted to her and he would release her when she turned 18. As charged,
Boyd's crimes occurred between August 2011 and May 2013. Logic dictates the events
described in S.D.A.'s impact statement—her mental health, inability to complete college,
and the loss of the Pell grant—all occurred before August 2016.

Admittedly, S.D.A.'s claimed loss was not directly caused by Boyd's crimes. But
we find the district court did not err in finding that Boyd's crimes were the proximate
cause of S.D.A.'s lost Pell grant. Under the cause-in-fact analysis, but for Boyd's crimes,
S.D.A. would not have lost the Pell grant because she would not have suffered from the
psychological issues that affected her ability to finish college. Boyd's manner of
committing the crimes for about a two-year period more likely than not caused S.D.A. to
suffer from psychological issues, become unable to finish college, and lose the Pell grant.

25
Boyd's crimes also constitute the legal cause. This case involves a chain of events.
In general, Boyd's crimes of sexually abusing S.D.A. from age 14 up to (and after) the
time she reached 16 years of age carried foreseeable risks of harm that S.D.A. would
suffer psychological issues that negatively impacted her ability to finish college a few
years after the crimes. The record supports that while Boyd was charged with two
criminal counts, the sexual abuse remained ongoing and continued throughout that
period. In addition, substantial evidence supports that the two criminal counts created a
chain of foreseeable risks of harm or foreseeable contributing causes that led to S.D.A.'s
claimed loss: S.D.A.'s psychological issues and inability to finish college led S.D.A. to
lose the Pell grant.

Boyd argues, however, that we should find his crimes too attenuated in time to
support a finding that his criminal conduct caused S.D.A. to lose the Pell grant. Boyd's
argument lacks merit. S.D.A. lost the Pell grant only a few years after Boyd's crimes.
And S.D.A.'s description of the sexual abuse provides support that Boyd's crimes were
the proximate cause of S.D.A.'s claimed loss. Namely, the evidence supported that Boyd's
crimes negatively affected S.D.A.'s mental health, which impacted her ability to finish
college and led to the lost Pell grant.

Last, Boyd argues the only evidence at trial of S.D.A.'s mental state showed she
had mental health problems before his crimes. Boyd points to Shearer's testimony of
S.D.A.'s statements during her interview that she felt she was taken advantage of because
of her weak state of mind and that she had had low self-esteem from an early age, a low
self-image, and had been bullied.

The problem is that Boyd did not object to S.D.A.'s statements in the PSI that she
received the mental health diagnoses and suffered other psychological-related issues after
Boyd's crimes. S.D.A.'s mental state before the crimes do not compare to her mental
health diagnoses after the crimes—PTSD, depression, anxiety, and insomnia. We are
26
unpersuaded by Boyd's attempt to minimize the effect of his crimes on S.D.A.'s mental
health. Substantial competent evidence supports the district court's factual findings that
Boyd's crimes proximately caused S.D.A.'s lost Pell grant. The district court did not err.

IV. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DENYING BOYD'S MOTION
FOR DOWNWARD DISPOSITIONAL DEPARTURE?

Finally, Boyd argues that the district court abused its discretion in refusing to
consider his motion for downward dispositional departure upon finding the motion was
barred by K.S.A. 2018 Supp. 21-6818(a) because he had committed crimes of extreme
sexual violence. The State contends that the district court did not err because it properly
considered and denied the merits of Boyd's departure motion.

A. Jurisdiction

"An appellate court has a duty to question jurisdiction on its own initiative." State
v. Marinelli, 307 Kan. 768, 769, 415 P.3d 405 (2018). After denying Boyd's motion, the
district court sentenced Boyd to a presumptive sentence. As a general rule, an appellate
court lacks jurisdiction over and cannot review a presumptive sentence on appeal. K.S.A.
2018 Supp. 21-6820(c)(1); State v. Kinder, 307 Kan. 237, 239-40, 408 P.3d 114 (2018).
But the parties agree we are permitted to review whether the district court misinterpreted
its own statutory authority under the sentencing statutes and improperly refused to
consider Boyd's motion for a discretionary nonpresumptive sentence. See, e.g., State v.
Warren, 297 Kan. 881, Syl. ¶ 1, 304 P.3d 1288 (2013).

B. Standard of Review

We review a district court's decision to deny a departure motion for an abuse of
discretion. See State v. Ibarra, 307 Kan. 431, 433, 411 P.3d 318 (2018). "The party
27
asserting an abuse of discretion bears the burden of establishing such abuse." Gannon v.
State, 305 Kan. 850, 868, 390 P.3d 461 (2017). An abuse of discretion occurs if a district
court applies the incorrect legal standard or relies on an erroneous legal conclusion. State
v. Warrior, 294 Kan. 484, Syl. ¶ 13, 277 P.3d 1111 (2012); State v. Woodward, 288 Kan.
297, 299, 202 P.3d 15 (2009). "Likewise, the district court's failure to exercise its
discretionary authority can be grounds for reversal." State v. Brinklow, 288 Kan. 39, 42,
200 P.3d 1225 (2009). An appellate court has unlimited review over the interpretation of
statutes. See State v. Hall, 298 Kan. 978, 982-83, 319 P.3d 506 (2014).

According to K.S.A. 2018 Supp. 21-6818(a), "[t]he sentencing judge shall not
impose a downward dispositional departure sentence for any crime of extreme sexual
violence, as defined in K.S.A. 2018 Supp. 21-6815, and amendments thereto." K.S.A.
2018 Supp. 21-6815(c)(2)(F)(i) defines a "'[c]rime of extreme sexual violence'" in
relevant part as

"a felony limited to the following:

(a) A crime involving a nonconsensual act of sexual intercourse or sodomy with
any person;

(b) a crime involving an act of sexual intercourse, sodomy or lewd fondling and
touching with any child who is 14 or more years of age but less than 16 years of age and
with whom a relationship has been established or promoted for the primary purpose of
victimization."

C. The record is unclear whether the district court considered and denied
Boyd's departure motion.

Boyd argues that the district court came to the erroneous legal conclusion that it
lacked the authority and refused to consider his motion for departure under K.S.A. 2018
28
Supp. 21-6818(a). He claims there was no evidence to support a finding that his acts
against the victim were nonconsensual or that he cultivated his relationship with the
victim primarily to victimize her.

After the trial, Boyd filed a written motion for downward dispositional departure.
In the motion, Boyd argued his alcohol abuse contributed to his actions and that a
Heartland Regional Alcohol & Drug Assessment Center (RADAC) assessment had
concluded Boyd was amenable to treatment. At sentencing, Boyd requested that the
district court order his sentences to run concurrent and consider granting him a downward
dispositional departure to probation. In support, Boyd argued that the district court should
consider his lack of prior serious felonies; his lack of future contact with S.D.A. and her
family; and the impact of Boyd's criminal history, alcohol use, domestic issues, and
domestic violence on his life. In response, the State argued K.S.A. 2018 Supp. 21-
6818(a) barred a dispositional departure because Boyd had committed crimes of extreme
sexual violence and the district court should consider the egregious nature of the crimes,
such as the ongoing threats of abuse to a child and his daughter's awareness of the abuse.

The district court requested the parties to present more argument on the issue of
whether Boyd's convictions were crimes of extreme sexual violence. Boyd argued crimes
of extreme sexual violence generally denote acts similar to forcible rape and his crimes of
conviction did not fit the definition. The State presented the definition of crimes of
extreme sexual violence under K.S.A. 2018 Supp. 21-6815(c)(2)(F)(i).

In deciding whether to depart, the district court first discussed Boyd's RADAC
assessment recommendations, which included a finding that Boyd believed residential
treatment was not an option for him. The district court also made the following
statements:

29
"I believe under the statute as we've gone through and definition in [K.S.A.] 21-
6815 as to the crime of extreme sexual violence, the convictions here for aggravated
indecent liberties and sodomy fit within and are part of the definition—statutory
definition of what a crime of extreme sexual violence is.

"Therefore, the motion for a downward dispositional departure for the reasons
requested by the Defendant will be denied.

"Without recounting what the jury heard and what occurred before in prior
evidentiary hearings, Mr. Boyd, as noted by the State, this was an ongoing continuous
situation that you placed [S.D.A.] in, and perhaps the added depravity of your own
daughter becoming aware of this, and based upon that alone, I will sentence you on
Count 1, the charge of aggravated indecent liberties, in violation of K.S.A. 21-5506 sub
(b) (1), sentence you to a term of 66 months in the custody of the Secretary of
Corrections.

"On Count 2 for the crime of conviction of committing sodomy in violation of
K.S.A. 21-5504 sub (a) (3), I will sentence you to a term of 59 months in the custody of
the Secretary of Corrections.

"Count 2 will be consecutive to Count 1 for a controlling term of 125 months in
prison." (Emphases added.)

We agree with Boyd that his crimes cannot be considered crimes of "extreme
sexual violence" as defined by K.S.A. 2018 Supp. 21-6818(a) and K.S.A. 2018 Supp. 21-
6815(c)(2)(F)(i). In State v. Monroe, No. 104,822, 2011 WL 6942941, at *4-5 (Kan. App.
2011) (unpublished opinion), another panel of our court, relying on State v. McClennon,
273 Kan. 652, 45 P.3d 848 (2002), held that only a jury can make the factual findings
necessary to determine whether the crime of conviction constituted a crime of extreme
sexual violence. The Monroe panel held that because the defendant pled guilty to the
crime of aggravated indecent liberties with a child, a jury did not have the opportunity to
make a factual determination of whether the defendant "'established or promoted' a
30
relationship with the victim for the 'primary purpose of victimization.'" 2011 WL
6942941, at *5. Accordingly, the panel ordered a remand for the district court to consider
the merits of the defendant's departure motion. 2011 WL 6942941, at *5. The same
should happen here.

As the elements of the offenses Boyd was convicted of did not include requiring
the State to prove whether the acts were nonconsensual or whether Boyd established or
promoted his relationship with the victim for the primary purpose of victimizing her,
Boyd's convictions cannot be classified as crimes of extreme sexual violence. Therefore,
the district court was not barred from considering the merits of Boyd's departure motion.

Moreover, we disagree with the State's contention that the district court considered
the merits of Boyd's departure motion. To us, the record is unclear on this point. The
decision of State v. Coyne, No. 105,082, 2012 WL 3135680 (Kan. App. 2012)
(unpublished opinion), provides a useful contrast. There, Coyne pled guilty to one count
of attempted aggravated indecent liberties with a child. Prior to sentencing, Coyne
requested both dispositional and durational departures. The district court granted the
durational departure but denied the dispositional departure, stating:

"'I do not believe that the Court has the ability to depart further.

"'And, I guess, I would tell you, Mr. Coyne, that even if I felt I did, with all the
evidence before me, and particularly knowing that there are other victims, I would not
grant you probation on this case.'" 2012 WL 3135680, at *2.

On appeal, Coyne argued the district court erred in denying his departure motion
upon the erroneous legal conclusion that it lacked authority to review his motion under
K.S.A. 2009 Supp. 21-4719 (now K.S.A. 2018 Supp. 21-6818) because he committed a
crime of extreme sexual violence. In reviewing Coyne's claim, the panel held that it did
not need to decide whether a dispositional departure was permitted because the district
31
court did not rely solely on a lack of authority to deny Coyne's motion. Rather, the panel
held that the judge's comment about lacking authority had no legal significance because
the judge found "Coyne would not receive a dispositional departure even if one was
permitted because of 'the evidence before me' and 'knowing there are other victims.'"
2012 WL 3135680, at *2. As a result, the panel affirmed Coyne's sentence.

Unlike in Coyne, where the district court clearly denied the merits of the
defendant's departure motion, the district court here did not expressly state that it was
denying Boyd's departure motion based upon the merits. The district court specifically
agreed with the State's contention that Boyd's crimes fit under the definition of a crime of
extreme sexual violence then stated that "the motion for a downward dispositional
departure for the reasons requested by the Defendant will be denied." It then proceeded
directly to sentence Boyd without a detailed discussion of the evidence. Based upon the
record before us, we are simply unsure whether the district court considered the merits of
Boyd's departure motion before denying it.

Boyd was entitled to have the merits of his departure motion considered by the
district court, and the district court erred in finding that it lacked discretion to consider
Boyd's motion. Therefore, while we affirm Boyd's convictions, we vacate Boyd's
sentences and remand with instructions for the district court to consider Boyd's departure
motion and then resentence him.

Convictions affirmed, sentences vacated, and remanded with directions.