State v. Cessna

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NOT DESIGNATED FOR PUBLICATION
No. 115,999
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,

v.

AARON T. CESSNA,
Appellant.



MEMORANDUM OPINION


Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed January 12,

2018. Affirmed.



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



Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before PIERRON, P.J., ATCHESON, J., and WALKER, S.J.



PER CURIAM: A jury sitting in Sedgwick County District Court convicted
Defendant Aaron T. Cessna of two counts of sexual exploitation of a child, aggravated
indecent liberties with a child, and aggravated criminal sodomy. The district court later
imposed a controlling sentence on Cessna of life with parole eligibility only after he has
served 618 months. On appeal, Cessna challenges both the convictions and the resulting
sentence. We find no grounds warranting relief and affirm.
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FACTUAL AND PROCEDURAL HISTORY



On March 19, 2014, the Sedgwick County District Attorney's office charged

Cessna with nine counts of sexual exploitation of a child. Earlier that month, Quang Minh
Nguyen, an employee at Octapharma Plasma, was going through the lost and found at the
business and discovered a black and red cell phone that had been there for approximately
three weeks. Quang attempted to turn the phone on to determine its owner, but the phone
had a dead battery. Quang removed the memory card from the phone, took it home, and
placed it into a different phone in an attempt to determine the phone's owner. The
memory card contained images of child pornography that alarmed Quang. The memory
card also contained a business card for Cessna. Quang deduced that Cessna was a
customer at the plasma center. Quang turned the memory card over to his manager.


Loan Nguyen, was the assistant manager at Octapharma Plasma that Quang turned
the memory card over to. Loan confirmed that Cessna was a customer of the plasma
center. Loan turned the phone and the memory card over to the Wichita police. Officers
obtained a search warrant for the black and red cell phone. Located on the cell phone was
a video in which Cessna masturbates and performs oral sex on a male child about one-
year old. Other videos on the phone depicted an adult male engaged in sexual intercourse
with a girl under the age of 10 and an adult male receiving oral sex from a girl under the
age of 10.


Officers contacted Cessna on March 17, 2014, telling him they had located property
belonging to him, and asked him to come to the station. Officers ended up transporting
Cessna to the station after he agreed to come. Detective Kevin Brown with the Wichita
Police Department Exploited/Missing Child Unit spoke with Cessna. Cessna was
Mirandized and signed a form acknowledging his rights. Cessna acknowledged "having a
phone similar to" the red and black cell phone and said he had last seen it in his
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truck. Cessna acknowledged giving plasma at the plasma center where the cell phone was
found.


When Cessna was told about the video depicting himself engaged in sex acts with
the male child, Cessna asked to speak to his attorney. The interview ended at that point.
Before leaving the interrogation room, Brown asked Cessna if he wanted anything to eat
or drink. Cessna asked for water. Several minutes later, Brown returned with the water.
Brown then asked Cessna if he could search the cell phone Cessna brought with him to
the police station. Cessna orally consented to the search. Brown then prepared a written
waiver of Cessna's rights in regard to the search with Cessna. Cessna signed the waiver.
The second cell phone contained various images of child pornography.


On April 15, 2014, the State amended the charges to two counts of felony sexual
exploitation of a child, off-grid sexual exploitation of a child, off-grid aggravated criminal
sodomy, and off-grid aggravated indecent liberties with a child. Following the preliminary
hearing on February 12, 2015, the district court bound Cessna over on the five charges.
On August 19, 2015, Cessna filed a motion to suppress. Cessna sought the suppression of
"any statements or actions made by" himself after he invoked "his right to counsel." The
State filed its response to the motion on August 26, 2015. The State claimed that "[t]he
waiver to search [wa]s non-testimonial in nature." The State filed another amended
complaint on August 28, 2015, changing the charges to two felony counts of sexual
exploitation of a child, and one count each of off-grid sexual exploitation of a child, off-
grid aggravated criminal sodomy, and off-grid aggravated indecent liberties with a child.


The district court held a hearing on the motion to suppress, along with other
pretrial motions, on August 28, 2015. The district court took the motion under advisement
before ultimately denying it on the first day of the trial, on August 31, 2016. The district
court explained its reasoning for the denial at a hearing following the trial on
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September 3, 2015. The district court based its decision to deny the suppression motion
on State v. Schultz, 289 Kan. 334, 212 P.3d 150 (2009).


Cessna's jury trial occurred August 31, 2015-September 1, 2015. During trial, the
State dismissed one count of felony sexual exploitation of a child, leaving one count each
of off-grid aggravated criminal sodomy, off-grid aggravated indecent liberties with a child,
off-grid sexual exploitation of a child, and felony sexual exploitation of a child. At trial,
the State called Breanna Rose as a witness. Rose was the mother of the child Cessna
performed sex acts with in the cell phone video. Rose, who was shown the video by Det.
Brown, testified that both Cessna and her son were the two individuals in the video.


On cross-examination, Rose testified that the memory (SD) card from the first cell
phone was given to Cessna by James Vansickle. When Cessna's lawyer inquired into a
possible relationship Rose had with Vansickle, the State objected on relevance grounds.
Outside of the presence of the jury, the district court heard arguments on the objection.
Cessna's lawyer claimed the relevance of the question was "to provide an alternative
person to point blame at." When asked if the defense had to do with a third party being the
perpetrator in the video, Cessna's attorney confirmed that could be a possibility. The
district court asked again if the defense was trying to establish if "James Vansickle could
be the person on the video; correct?" Cessna's attorney responded: "Yes, Your Honor." A
lunch recess was then taken. Following the recess, the district court again asked Cessna's
lawyer to confirm his position for relevance of a possible relationship between Rose and
Vansickle. Cessna's lawyer stated: "Based on Ms. Rose's testimony that Mr. Vansickle
had provided Mr. Cessna with the SD card or the memory card for the red phone, I was
just simply trying to tie in potential third-party identification of another potential suspect in
this case." The district court sustained the State's objection.


Cessna was found guilty on all four counts. On December 22, 2015, Cessna filed a
motion challenging the presentence investigation, a motion for a downward sentencing
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departure, a motion for new trial and judgment of acquittal, and a motion for
determination that the mandatory minimum sentences are unconstitutional. The district
court denied the motion for new trial and judgment of acquittal and the motion
challenging the presentence investigation.


A hearing on the remaining motions, along with sentencing occurred March 29,

2016. The district court denied both the constitutional challenge to mandatory minimums
and the departure motion. Cessna received a life sentence for aggravated sodomy with
parole eligibility after 618 months, 240 months for sexual exploitation of a child, a life
sentence with parole eligibility after 25 years for aggravated indecent liberties, and 64
months for the other sexual exploitation charge. The district court ordered all of sentences
served concurrently. Cessna has timely appealed.



ANALYSIS



Motion to Suppress



For the first time on appeal, Cessna contends the oral and written consents he
provided for the search of one of his cell phones violated the Fourth Amendment to the
United States Constitution because they were impermissibly coerced and, therefore,
involuntary. In the district court, Cessna argued the consents were unenforceable because
he had asserted his Fifth Amendment right against self-incrimination before Det. Brown
asked for permission to search the cell phone. He also argued Det. Brown violated his
Sixth Amendment right to counsel by requesting the consent after he had asked to speak to
a lawyer. The district court rejected the Fifth and Sixth Amendment arguments.


We presume Cessna has tried to switch constitutional gears because his arguments
based on the Fifth and Sixth Amendments run counter to generally accepted legal
doctrine. See Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079, 173 L. Ed. 2d
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955 (2009) ("[O]nce the adversary judicial process has been initiated, the Sixth
Amendment guarantees a defendant the right to have counsel present at all 'critical' stages
of the criminal proceedings," including postarraignment police questioning); State v.
Boorgie, 273 Kan. 18, 30, 41 P.3d 764 (2002) (Sixth Amendment right to counsel
attaches only after charges have been filed against defendant); United States v. Calvetti,

836 F.3d 654, 662-63 (6th Cir. 2016) (government agent's request for consent to search
does not amount to questioning or interrogation within scope of Fifth Amendment, so
efforts to obtain consent after uncharged suspect has requested lawyer isn't protected);
United States v. Gonzalez-Garcia, 708 F.3d 682, 686-87 (5th Cir. 2013) (same); United
States v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996) (same).


In his appellate brief, Cessna suggests he asserted Fourth Amendment grounds to
the district court in his motion to suppress. But our review of the record convinces us
otherwise. The Fourth Amendment was not specifically raised, and the argument and the
evidence at the suppression hearing did not directly address the voluntariness of Cessna's
oral or written consent to search.


An appellate court is not obligated to consider issues raised for the first time on
appeal, including those asserting constitutional challenges, and generally should refrain
from doing so. See State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). Given the
issue and the record on appeal, we decline to depart from the general rule.


The voluntariness of any consent to search that a person provides during an
encounter with law enforcement officers is an especially fact intensive inquiry. See, e.g.,
State v. Hogan, 45 Kan. App. 2d 715, 726-28, 252 P.3d 627 (2011). When a defendant
files a motion to suppress, the State bears the burden of proving to the district court that
the challenged evidence has been lawfully obtained. State v. Wissing, 52 Kan. App. 2d
918, Syl. ¶ 1, 379 P.3d 413, rev. denied 305 Kan. 1258 (2016). The State, therefore, is
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entitled to fair notice that the voluntariness of a consent will be a contested issue in the
district court so that it may fully address the point during the evidentiary hearing.


Here, the voluntariness of Cessna's consent to search was not raised as an issue—
contested or otherwise—at the hearing on the motion to suppress or in the motion itself.
The State did not present evidence or otherwise compile a hearing record directly dealing
with consent. We have no way of knowing if the State would have offered additional
evidence at the hearing bearing strictly on voluntariness. But we should not review the
issue for the first time on appeal under the circumstances.


Cross-examination of Victim's Mother



Cessna contends he was denied his constitutional right to present a full and
complete defense when the district court limited cross-examination of the mother of the
one-year-old victim. Cessna maintains "relevant impeachment evidence" showing
mother's bias and effort to protect Vansickle was excluded by the district court. The
premise behind the line of questioning was the possibility that Vansickle committed at
least some of the sex crimes depicted in the cell phone videos.


The district court sustained an objection to the testimony on the ground it was
irrelevant. Generally speaking, all relevant evidence is admissible. K.S.A. 60-407(f). In
turn, K.S.A. 60-401(b) defines relevant evidence as that having "'any tendency in reason
to prove any material fact.' [Citations omitted.]" State v. Page, 303 Kan. 548, 550, 363
P.3d 391 (2015). The definition encompasses two elements: materiality and
probativeness.


The elements call for different standards of appellate review. Evidence is material
when the fact it supports is in dispute and is significant under the substantive law of the
case. State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543 (2016). The standard of review
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for materiality is de novo. Page, 303 Kan. at 550. "'Evidence is probative if it furnishes,
establishes, or contributes toward proof.'" McCormick, 305 Kan. at 47. Probativeness is
reviewed for abuse of discretion. 305 Kan. at 47. A judicial action amounts to an abuse of
discretion if (1) no reasonable person would take the view adopted by the district court; (2)
it is based on an error of law; or (3) it is based on an error of fact. State v. Marshall,
303 Kan. 438, 445, 362 P.3d 587 (2015). A proffer of the substance of the evidence the
district court has refused to admit is required for an appellate court to review the ruling.
See K.S.A. 60-405; State v. Garza, 290 Kan. 1021, 1029, 236 P.3d 501 (2010).


Cessna's lawyer was clear that he asked the question in an effort to prove
Vansickle may have been the perpetrator in the video. To pursue that sort of third-party
defense, a defendant must offer some demonstrable and admissible factual basis to
suggest the third party committed the crime. State v. Burnett, 300 Kan. 419, 431-32, 329
P.3d 1169 (2014). Without that showing, the district court may properly exclude any
examination of witnesses about the third party, since the questioning would trade on
speculation rather than on evidence. More broadly, of course, a lawyer must have a good-
faith factual basis for pursuing a line of questioning. See State v. Tosh, 278 Kan. 83, Syl.
¶ 3, 91 P.3d 1204 (2004). Here, Cessna's lawyer could not satisfy that preliminary burden
to open up the possibility Vansickle might have been the perpetrator in front of the jury.
The district court ruled correctly on that aspect of the questioning.


Apart from that speculative theory, the record affords no indication that any
relationship between the mother of the victim and Vansickle would in any way be relevant
to Cessna's guilt. To that extent, the district court's ruling is likewise correct. But the
district court did not appear to close down all additional inquiry about the possible
relationship upon a good-faith showing of the nature of the relationship and its potential
relevance. Cessna's lawyer, however, never returned to the purported relationship during
the trial.
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We find no error on this point.


Jury Instruction and Nullification


On appeal, Cessna contends the jury instruction on reasonable doubt improperly
inhibited the jurors from rendering a nullification verdict of not guilty despite the
evidence and the law. The district court used the standard language from PIK Crim. 4th
51.010 advising the jurors they "should find the defendant guilty" in the absence of any
reasonable doubt that the State had proved the elements of the charged crimes. Cessna
relies heavily on State v. Smith-Parker, 301 Kan. 132, 340 P.3d 485 (2014), although the
decision is distinguishable because the challenged reasonable doubt instruction in that
case used more directive language.


Various panels of this court have rejected the argument Cessna now makes
regarding the standard language from PIK Crim. 4th 51.010. State v. Allen, 52 Kan. App.
2d 729, Syl. ¶ 5, 372 P.3d 432 (2016), rev. denied 306 Kan. (April 17, 2017); State v.
McDuffie, No. 113,987, 2017 WL 2617648, at *8-9 (Kan. App. 2017) (unpublished
opinion), rev. denied 306 Kan. (October 27, 2017); State v. Spalding, No. 114,561,
2017 WL 1433513, at *8 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan.

(November 6, 2017); State v. Bostic, No. 115,114, 2017 WL 1382603, at *5-6 (Kan.
App. 2017) (unpublished opinion), rev. denied 307 Kan. (November 9, 2017); State
v. Campbell, No. 114,167, 2016 WL 3407598, at *3-4 (Kan. App. 2016) (unpublished
opinion) (collecting cases), rev. denied 306 Kan. (April 26, 2017); State v. Hastings,
No. 112,222, 2016 WL 852857, at *4-5 (Kan. App. 2016) (unpublished opinion), rev.
denied 306 Kan. (April 17, 2017); State v. Jones, No. 111,386, 2015 WL 4716235, at
*5-6 (Kan. App. 2015) (unpublished opinion), rev. denied 303 Kan. 1080 (2016). We join
them and find no error.
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Sentencing Issues


• Cessna contends the district court improperly used his criminal history category
of B in determining his earliest parole eligibility would come after he served 618 months
of the life sentence he received on the off-grid conviction for aggravated criminal
sodomy. He premises his argument on the statutory requirement that a defendant's
criminal history will be used to establish a presumptive base sentence for a primary crime
and will not then be applied to the sentences for other convictions for crimes charged in
the same complaint, including off-grid crimes. With multiple convictions, an off-grid
crime is not to be used as the primary crime. See K.S.A. 2016 Supp. 21-6819. So a
defendant's criminal history does not figure in an off-grid sentence of life. That's true but
beside the point.


Cessna's argument is built on a faulty premise. The argument treats the 618-month
period as if it were a sentence, when it actually establishes how much of the off-grid life
sentence Cessna must serve before he can be considered for parole or conditional release
from prison. So the period is not a sentence but a trigger for parole eligibility. In turn,
K.S.A. 2016 Supp. 21-6819 does not apply.


The district court correctly looked to and applied K.S.A. 2016 Supp. 21-6627,
designating and governing certain sex crimes as off-grid offenses, including Cessna's
conviction for aggravated criminal sodomy. Cessna's conviction is for an off-grid crime
because of the victim's young age. As provided in K.S.A. 2016 Supp. 21-6627,
defendants convicted of off-grid aggravated criminal sodomy typically will be parole
eligible after serving either 25 years or 40 years in prison, depending on whether they
have a previous conviction for a sex crime. Aggravated criminal sodomy is otherwise a
severity level 1 person felony and, thus, subject to the sentencing grid and guidelines.
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But K.S.A. 2016 Supp. 21-6627 contains an exception to the 25- and 40-year

parole eligibility periods. If a defendant would serve a presumptive guideline sentence for
the sex crime longer than 25 or 40 years based on his or her criminal history
classification, then the length of that sentence becomes the parole eligibility period for the
off-grid life sentence. See K.S.A. 2016 Supp. 21-6627(a)(2)(B); (b)(2)(B). The exception
expressly requires consideration of the defendant's criminal history classification and has
nothing to do with establishing a base sentence for a primary crime under K.S.A. 2016
Supp. 21-6819.


In turn, the exception avoids an anomaly in which a defendant with a significant
criminal history convicted of an off-grid sex crime based on the victim's age might
actually become eligible for conditional release from prison sooner than if he or she were
convicted of the same sex crime under the sentencing guidelines against a much older
victim. For a severity level 1 felony, Cessna would face a presumptive guidelines sentence
of 554 to 618 months based on his criminal history classification of B.


The district court, therefore, correctly applied 21-6627(a)(2)(B) to require Cessna
to serve 618 months or 51 and 1/2 years in prison before he becomes parole eligible on
his life sentence. Cessna has shown no error.


• Cessna next contends that his past convictions amount to elements of his present
crimes of conviction and, therefore, cannot be used to increase his punishment. To
advance this argument, he cites Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), for the proposition that if a fact or circumstance exposes
a criminal defendant to a punishment greater than that authorized by the jury's guilty
verdict alone, it is in the nature of an element of the offense. He then segues to K.S.A.
2016 Supp. 21-6810(d)(9) and argues it precludes the use of a past conviction to enhance
a sentence if that conviction is an element of the crime of conviction. Cessna weaves
those disparate threads together and pronounces them a cloak of invulnerability barring
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the district court from considering his past convictions in determining his criminal history
category.


The argument fails in each respect. Whatever the Apprendi Court meant by the
passage Cessna draws on, it isn't what he asserts. The case stands for the proposition that
a fact enhancing a criminal defendant's punishment beyond the statutorily prescribed
sentence must be proved to a jury. But that rule does not apply to a past conviction used
to increase a defendant's punishment for a present crime precisely because he or she is a
criminal recidivist. Apprendi, 500 U.S. at 490. So using the fact of Cessna's past
convictions to determine his criminal history category does not offend Apprendi or its
constitutional underpinnings in the Sixth and Fourteenth Amendments to the United
States Constitution.


As provided in K.S.A. 2016 Supp. 21-6810(d)(9), a defendant's past conviction
should be excluded from his or her criminal history if it is used to enhance the crime of
conviction from misdemeanor to a felony or to elevate the severity level. Likewise, a past
conviction cannot be counted for criminal history purposes if it is a statutory element of
the crime of conviction. K.S.A. 2016 Supp. 21-6810(d)(9). For example, unlawful
possession of a weapon by a convicted felon necessarily requires the defendant to have
been convicted of a felony. See K.S.A. 2016 Supp. 21-6304. That predicate felony
cannot, then, be included in the defendant's criminal history, since it is a required part or
element of the crime of conviction. Here, Cessna's past offenses have not been used in
any of the ways outlined in K.S.A. 2016 Supp. 21-6810(d)(9) and, therefore, can be
scored in determining his criminal history category. Cessna's sentencing argument fails.


• Cessna contends the district court's denial of his motion for a downward
sentencing departure from the off-grid sentences to severity level 1 guidelines sentences,
as permitted under K.S.A. 2016 Supp. 21-6627(d)(1), amounted to an abuse of judicial
discretion. The district court may impose a downward departure sentence if it finds
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"substantial and compelling reasons" to do so. The statute identifies a nonexclusive list of
mitigating circumstances the district court may consider. K.S.A. 2016 Supp. 21-
6627(d)(2).


The decision whether to grant a downward departure under K.S.A. 2016 Supp. 21-

6627(d)(1) lies within the district court's sound discretion. State v. Jolly, 301 Kan. 313,

325, 342 P.3d 935 (2015) (considering K.S.A. 21-4643, predecessor to K.S.A. 2016
Supp. 21-6627). We have already outlined the appellate standard for assessing a district
court's purported abuse of that discretion. See Marshall, 303 Kan. at 445.


At the sentencing hearing, the district court acknowledged Cessna's motion and the

State's response and heard the arguments of the lawyers. In denying the motion in a
bench ruling, the district court simply said, "I do not find substantial and compelling
reasons to depart." The district court did not otherwise explain the decision. Neither the
prosecutor nor Cessna's lawyer requested a more detailed explanation from the district
court.


We think it plain from the trial record, the written submissions, and the argument
that the district court was aware of the relevant factual circumstances and understood the
legal framework within which it was to act. The only question, then, is whether other
district courts would have ruled the same way given those circumstances. On appeal,
Cessna says no. We disagree.


Cessna had two juvenile court adjudications for what would have been serious sex
crimes if committed by an adult. Although Cessna was only 19 years old when he
committed the crimes of conviction, they reflect a continuing pattern of especially
abusive behavior. The crimes of conviction also involve multiple sex acts with multiple
victims of very young ages—one of the victims was still an infant. The circumstances of
the crimes reflect substantial reasons militating against a downward departure, especially
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when weighed against the mitigating factors Cessna offered. His lawyer cited the
somewhat conflicting grounds that Cessna had "meritorious claims" at trial but later
expressed remorse. And the lawyer noted that Cessna had ongoing substance abuse
problems. Cessna personally represented to the district court that he had been sexually
abused outside the home as a young child. In his appellate brief, Cessna points out that
the victims had not been beaten or otherwise physically injured apart from having to
participate in the sex acts. Cessna's conduct can, nonetheless, be accurately described as
depraved. See State v. Mossman, 294 Kan. 901, 920, 281 P.3d 153 (2012).


In sum, we cannot say the district court abused its discretion in finding the
mitigating factors did not reflect substantial and compelling reasons for a downward
departure, especially when viewed within the overall circumstances of the crimes of
conviction. See Jolly, 301 Kan. at 324-25. We readily conclude other district courts
would have ruled the same way.


• Cessna argues that the district court's use of his past convictions in determining an
appropriate sentence impairs his constitutional rights because the fact of those convictions
was not determined beyond a reasonable doubt by the jury. He relies on the Apprendi
decision to support that proposition. He also acknowledges the Kansas Supreme Court has
rejected that argument and has found the State's current sentencing regimen conforms to
the Sixth and Fourteenth Amendments and satisfies the requirements of Apprendi with
respect to the use of a defendant's past convictions in determining a presumptive statutory
punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. Ivory,
273 Kan. 44, 46-48, 41 P.3d 781 (2002). We, therefore, decline Cessna's invitation to rule
otherwise, especially in light of the Kansas Supreme Court's continuing affirmation of
Ivory. State v. Pribble, 304 Kan. 824, 838-39, 375 P.3d 966 (2016); State v. Hall, 298 Kan.
978, 991, 319 P.3d 506 (2014).
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Having considered the various points Cessna has raised challenging both his
convictions and his sentences, we find no grounds that would warrant relief.


Affirmed.