State v. Harris

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NOT DESIGNATED FOR PUBLICATION

No. 113,879

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KENNETH HARRIS,
Appellant.


MEMORANDUM OPINION

Appeal from Stevens District Court; CLINT B. PETERSON, judge. Opinion filed March 17, 2017.
Affirmed.

Jonathan Laurans, of Kansas City, Missouri, and Adam Crane, of The Crane Law Firm, LLC, of
Overland Park, for appellant.

Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., MALONE, J., and STUTZMAN, S.J.

Per Curiam: A jury convicted Kenneth Harris of four counts of rape and one
count each of attempted rape, aggravated indecent liberties, aggravated intimidation of a
victim, kidnapping, and abuse of a child. Harris appeals, arguing that (1) the district court
should not have admitted evidence of his prior sexual misconduct under K.S.A. 2014
Supp. 60-455; (2) the district court should have provided a limiting instruction on the use
of the K.S.A. 2014 Supp. 60-455 evidence; (3) the State presented insufficient evidence
to support his convictions of aggravated intimidation of a victim and kidnapping; and (4)
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his sentence of lifetime postrelease supervision is illegal. We affirm the district court's
judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 23, 2013, K.S. told her stepmother that her father, Harris, had been
raping her for almost a year. After hearing this information, K.S.'s stepmother took K.S.,
left home, and reported the abuse to law enforcement. The next day K.S. went to the
Western Kansas Child Advocacy Center for a forensic interview. K.S. told the
interviewer that sometime between Halloween and Thanksgiving of 2012, Harris began
"raping her" and "doing her." K.S. stated that Harris first raped her at the family's home.
Harris was in the hot tub in the garage with K.S. and he made her touch his penis. He
then forced her to lie on a mattress in the garage where he raped her. K.S. believed that
this incident occurred around Halloween when she was in fourth grade because she
remembered that there was a lot of blood in her underwear and it was difficult to rinse it
out. K.S. could not provide a precise timeline, however, because she stated that she
actively tried to forget what Harris did to her.

K.S. reported that after the first incident, Harris repeatedly raped her in her
bedroom and bathroom, always covering her head with a blanket or pillow. K.S. told the
interviewer that in addition to raping her, Harris would also insert objects into her vagina
and would touch her vagina with his mouth and hands. When he raped her, K.S. stated
that Harris would wear a "sock"—meaning a condom. Harris kept a box of condoms
under K.S.'s bed for this purpose and when he was finished he would flush the condom
down the toilet. Harris would tell K.S. that if she told anyone, he would kill her
stepmother and her pets in front of her and he would then kill K.S. Additionally, K.S.
reported that because she always bled after Harris raped her, Harris forced her to use
tampons, even though she had not yet begun menstruating.

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K.S. reported that Harris began threatening her to get her to submit to intercourse.
Specifically, K.S. reported that Harris would hit her with a piece of wood if she did not
obey. He also would tape her hands behind her back and tape her legs apart and to the
bathroom counter with duct tape if K.S. resisted. Finally, K.S. stated that Harris' threats
had escalated and he would hold a gun to her head, telling her that he would kill her if she
did not submit. After the forensic interview, K.S. went to St. Catherine's Hospital for an
examination. The examination revealed vaginal traumas in various states of healing
consistent with ongoing sexual abuse.

Harris was arrested on September 25, 2013. On that afternoon, the Stevens County
Sheriff's Office executed a search warrant on Harris' home. Agent Bethanie Popejoy, a
special agent with the Kansas Bureau of Investigation's (KBI) Child Victims Unit
assisted in the execution of the search warrant. Popejoy found two rolls of duct tape in
the dining room, stained bedding, and firearms. After this initial investigation, K.S.
contacted Officer Brian Schooley and turned over a pedicure tool that Harris had inserted
into her vagina, a condom wrapper from a condom Harris used, and a tampon that she
had saved. On October 5, 2013, Popejoy and Schooley conducted a search of the septic
tank on Harris' property where they found five condoms, five tampons, and several
condom wrappers that were the same brand as condoms sold in a nearby convenience
store vending machine. The condom wrappers found in the septic system were also the
same brand as the wrapper that K.S. had provided to Schooley.

Popejoy sent various items to KBI for testing, including a fitted sheet from K.S.'s
bed, the pedicure tool, and the tampon K.S. had provided to Schooley; she decided not to
send anything found in the septic tank, however, because the conditions of the septic tank
made it extremely unlikely that a DNA profile could be obtained. James Newman, a
forensic scientist at the KBI, found blood on the fitted sheet but could not obtain a DNA
profile from the blood. Similarly, Newman was able to detect a mixed DNA profile on
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the pedicure tool but was unable to match it to a particular individual. The tampon,
however, had K.S.'s blood on it.

The State charged Harris with four counts of rape and one count each of attempted
rape, aggravated criminal sodomy, aggravated indecent liberties, aggravated intimidation
of a victim, kidnapping, aggravated assault, and abuse of a child. Prior to trial, the State
filed a motion to admit evidence of prior incidents of sexual abuse under K.S.A. 2014
Supp. 60-455. The State requested that the district court admit evidence that Harris
sexually abused P.P., his former stepdaughter, when she lived with him, and S.L., Harris'
ex-wife, who he allegedly raped.

At a pretrial hearing on the State's K.S.A. 60-455 motion, the State informed the
district court that it wished to have P.P. testify that when she was a minor living with
Harris, she was subjected to prolonged sexual abuse by him. Specifically, P.P. would
testify that when she was in second grade, Harris would whistle at her and call her
"sexy." Harris would also play a game with her where he would pull her pants down and
she was supposed to do the same back to him. Finally, P.P. would testify about two
incidents where Harris sexually abused her. The first incident occurred when she was in
second grade and she woke up from a nap to Harris fondling her breasts and genitals
through her clothing. The second incident occurred when P.P. was in third grade and
Harris pulled her onto his lap while he was watching pornography and again fondled her
breasts and genitals and attempted to get his hands under her clothes. P.P. would also
testify that after these incidents occurred, Harris would threaten her not to tell anybody.
The State also sought to admit testimony from Harris' ex-wife, S.L., who claimed that
Harris forcibly raped her while covering her head—as he did with K.S.

Harris objected to the admission of the testimony of both P.P. and S.L., arguing
that the incidents were not sufficiently similar as to be material or relevant, and the
evidence was far more prejudicial than probative. After taking the matter under
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advisement, the district court issued a ruling admitting P.P.'s testimony under K.S.A.
2014 Supp. 60-455 but not that of S.L. The district court ruled that P.P. could testify that
Harris fondled her, that he made her play a game where they would pull down each
other's pants, and that he would "wolf whistle" at her and call her "sexy." The district
court noted that the fact that P.P. and K.S. "were of tender years when the alleged sex
offenses were perpetrated against them" rendered the evidence more probative than
prejudicial. Conversely, the district court found that the disparity in ages between S.L.
and K.S. "tip[ped] the scale in favor of the prejudicial value."

Harris' jury trial began on March 30, 2015. The State first called K.S. who testified
about Harris' sexual abuse. The State then called P.P. who testified about the prior acts of
sexual misconduct Harris committed against her as permitted by the district court. The
State also called Schooley and Popejoy who testified about the investigation and the
items found during the search of Harris' property and septic system. On the second day of
trial, the State presented the testimony of the forensic interviewer, the nurse and doctor
who examined K.B. for signs of sexual assault, and Newman, the KBI analyst.

After the State rested, Harris told the district court that he wished to testify against
his attorney's advice. The district court held a brief recess to permit defense counsel to
prepare for Harris' testimony; however, when they returned Harris stated that he no
longer wished to testify. The defense rested without calling any witnesses. Harris' defense
was essentially that the State did not present enough evidence to find him guilty beyond a
reasonable doubt.

After a little over 4 hours of deliberation, the jury reached a verdict. It found
Harris guilty of all charges except for aggravated criminal sodomy (count 6) and
aggravated assault (count 10). Harris filed a motion to depart, which the district court
denied at sentencing. The district court imposed a controlling sentence of life
imprisonment with no possibility of parole for 50 years, to be followed by an additional
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term of 61 months' imprisonment. He also received a term of lifetime parole. Harris
timely appealed the district court's judgment.

K.S.A. 60-455 EVIDENCE

Harris argues that the district court erred when it admitted P.P.'s testimony about
Harris' prior sexual misconduct under K.S.A. 2014 Supp. 60-455. Specifically, Harris
claims that there was not enough similarity between the charged crimes and P.P.'s
allegations, and P.P.'s testimony was more prejudicial than probative, so it should have
been excluded. Although the State addresses the merits of Harris' argument, it first points
out that Harris failed to preserve this issue for appeal because he did not object to the
admission of P.P.'s testimony at trial.

The State is correct. To preserve an issue related to the admission of evidence for
appeal, a party must make a timely and specific objection to the admission of that
evidence. K.S.A. 60-404; State v. Breeden, 297 Kan. 567, 579-80, 304 P.3d 660 (2013);
State v. Gaona, 293 Kan. 930, 956, 270 P.3d 1165 (2012). Here, Harris objected to the
admission of P.P.'s testimony at the pretrial hearing on the State's K.S.A. 60-455 motion.
However, Harris did not make a contemporaneous objection at trial, nor did he renew his
objection at the start of trial or ask for a continuing objection.

Harris contends that the issue is sufficiently preserved because he objected at the
pretrial hearing and the district court's ruling "made clear" that another objection "would
have been a nullity." However, the law is clear: "a pretrial objection must be
contemporaneously renewed during trial or preserved through a standing objection." State
v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352 (2010) (holding appellant's pretrial
objection to K.S.A. 60-455 evidence was not sufficient to preserve the issue for appeal
where appellant failed to renew his pretrial objection). Harris' failure to renew his
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objection at the time of P.P.'s trial testimony precludes appellate review of the merits of
his claim. See Berriozabal, 291 Kan. at 580.

Although the issue is not preserved, we will briefly address the merits if for no
other reason than to possibly foreclose a future claim of ineffective assistance of trial
counsel for failure to make a contemporaneous objection. An appellate court's review of a
district court's decision to admit evidence is a two-step process. State v. Bowen, 299 Kan.
339, 348, 323 P.3d 853 (2014). First, the appellate court determines whether the
contested evidence is relevant. 299 Kan. at 348. Relevant evidence must be both material
in that it has a legitimate bearing on the case and is in dispute, and probative meaning it
has any tendency to prove the material fact. 299 Kan. at 348. Whether evidence is
material is reviewed de novo, while the probative value of evidence is reviewed for abuse
of discretion. 299 Kan. at 348. If the admitted evidence was relevant, then the appellate
court reviews whether its probative value outweighs its potential for "undue prejudice"
for abuse of discretion. 299 Kan. at 348. A district court abuses its discretion when (1) no
reasonable person would take the view adopted by the district court; (2) the decision is
based on an error of law; or (3) the decision is based on an error of fact. State v.
Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

Prior to 2009, propensity evidence was inadmissible unless it was relevant to
prove some other fact such as motive, opportunity, intent, preparation, plan, or absence of
mistake. In 2009, the Kansas Legislature amended K.S.A. 60-455 to permit the use of
propensity evidence in sex offense cases. Subsection (d) provides that: "in a criminal
action in which the defendant is accused of a sex offense . . . evidence of the defendant's
commission of another act or offense of sexual misconduct is admissible, and may be
considered for its bearing on any matter to which it is relevant and probative."

While K.S.A. 2014 Supp. 60-455 permits the use of propensity evidence in sex
offense cases, the evidence still must be relevant to be admissible. State v. Prine, 297
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Kan. 460, 477, 303 P.3d 662 (2013). Relevant evidence is evidence having "any tendency
in reason to prove any material fact." State v. Page, 303 Kan. 548, 550, 363 P.3d 391
(2015). As we previously stated, the definition of relevance contains two elements:
materiality and probative value. See Prine, 297 Kan. at 477. Evidence is material when
the fact it supports is in dispute or at issue in the case. Bowen, 299 Kan. at 348. Evidence
is probative if it has a logical tendency to prove any material fact. Prine, 297 Kan. at 477.

"In sex offense cases, propensity evidence is material, i.e., has a 'legitimate and
effective bearing' on defendants' guilt. [Citation omitted.]" Bowen, 299 Kan. at 349. Here,
P.P.'s testimony that Harris sexually abused her is material. P.P.'s testimony is also
probative of Harris' propensity to commit sex crimes against children because the acts
alleged by P.P. were sufficiently similar to K.S.'s allegations. See 299 Kan. at 349. P.P.
testified that Harris began molesting her while he was her stepfather and P.P. was living
at his home. P.P. stated that on one occasion she woke up from a nap to Harris touching
her genitals and chest through her clothing. On another occasion, Harris fondled her
genitals and attempted to place his hands under her clothes. As noted by the district court,
both victims were "of tender years" when Harris sexually abused them, and both victims
were living with Harris at the time of the abuse. The similar ages of the two victims, the
fact that Harris had a parental relationship with both P.P. and K.S., and the fact that both
P.P.'s and K.S.'s allegations consisted of nonconsensual sexual contact tends to prove that
Harris has a propensity to sexually abuse young girls of approximately the same age as
K.S. The district court correctly determined that P.P.'s testimony was relevant.

Even if evidence is relevant, the district court can still exclude it if its probative
value is outweighed by its potential for undue prejudice. See K.S.A. 60-445. The Kansas
Supreme Court in Bowen set out various factors for courts to consider when balancing the
probative value of propensity evidence in sex offense cases against its potential for
prejudice:

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"'1) how clearly the prior act has been proved; 2) how probative the evidence is of the
material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4)
whether the government can avail itself of any less prejudicial evidence. When analyzing
the probative dangers, a court considers: 1) how likely it is such evidence will contribute
to an improperly-based jury verdict; 2) the extent to which such evidence will distract the
jury from the central issues of the trial; and 3) how time consuming it will be to prove the
prior conduct.'" Bowen, 299 Kan. at 350 (citing United States v. Benally, 500 F.3d 1085,
1090-91 [10th Cir. 2007]).

Here, the district court did not err when it determined that the probative value of
P.P.'s testimony outweighed the potential for undue prejudice. The district court carefully
considered the evidence and only permitted P.P. to testify about the allegations against
Harris that were similar to K.S.'s allegations. The district court took care to limit P.P.'s
testimony to the amount necessary to establish Harris' propensity to sexually abuse girls
similar in age to K.S. The district court also excluded the testimony of Harris' ex-wife
after concluding that her allegations were not sufficiently similar to K.S.'s allegations and
her testimony would be more prejudicial than probative. It cannot be said that no
reasonable person would have taken the view adopted by the district court that the
probative value of P.P.'s testimony was not outweighed by a risk of prejudice. Thus, the
district court did not err in admitting P.P.'s testimony of Harris' prior acts of sexual
misconduct under K.S.A. 2014 Supp. 60-455.

In a related issue, Harris also asserts that the district court committed reversible
error when it failed to instruct the jury that P.P.'s testimony was limited to "propensity
evidence," and was not to be considered as substantive evidence "bearing directly against
Harris." The State contends that it is settled law that a limiting instruction for K.S.A.
2014 Supp. 60-455 evidence is not required in child sex abuse cases. Although the issue
of the admissibility of P.P.'s testimony was not preserved for appeal, the jury instruction
issue is not waived by Harris' failure to object at trial to the K.S.A. 60-455 evidence. See
Breeden, 297 Kan. at 579-80 ("[Appellant] can raise an argument regarding the trial
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court's failure to give a limiting instruction even if he did not object to the admission of
the [K.S.A. 60-455] evidence.").

When an error in the giving or failing to give a jury instruction is claimed, an
appellate court analyzes whether the jury instruction is legally and factually appropriate
and, if so, whether the error is harmless. State v. Solis, 305 Kan. 55, 64-65, 378 P.3d 532
(2016). If the failure to give an instruction is raised for the first time on appeal, however,
the failure to give the instruction will only warrant reversal if the failure was clearly
erroneous; a failure to give a limiting instruction is clearly erroneous if the defendant
firmly convinces the appellate court that the jury would have returned a different verdict
had the instruction been given. Solis, 305 Kan. at 64-65. Here, the district court's failure
to give a limiting instruction is raised for the first time on appeal, so Harris will succeed
only if he can convince this court that the jury would have reached a different result at
trial had the instruction been given.

Harris relies on State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), in support of
his claim that the district court erred in not providing a limiting instruction; this reliance,
however, is misplaced. In Gunby, the defendant was convicted of first-degree murder
arising out of the strangulation death of his classmate. At trial, the district court admitted
testimony regarding prior violent incidents between the defendant and the victim under
K.S.A. 60-455, explaining that it was evidence of the "'res gestae of the situation.'" 282
Kan. at 59. On appeal, Gunby contested the district court's admission of this testimony,
claiming that admission of the testimony was not permissible under K.S.A. 60-455 or, if
it was admissible, the district court should have provided a limiting instruction to the
jury. 282 Kan. at 47. Our Supreme Court noted that while K.S.A. 60-455 expressly
prohibits the use of evidence of prior crimes or wrongs to prove a defendant's propensity
to commit the charged crime, such evidence could be admissible to prove "some other
material fact." 282 Kan. at 48. Due to the risk of unfair prejudice inherent in the
admissibility of such evidence, our Supreme Court stated that trial courts should provide
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instructions limiting the purpose for which evidence of similar offenses can be
considered. 282 Kan. at 55, 58.

However, Gunby predated the 2009 amendments to K.S.A. 60-455; the 2009
amendments under subsection (d) expressly carved out an exception to the general rule
against propensity evidence in child sex cases. State v. Dean, 298 Kan. 1023, 1032, 324
P.3d 1023 (2014) ("Under the 2009 version of K.S.A. 60-455, propensity evidence is
admissible in sexual abuse cases as long as it is 'relevant and probative.'"). Our Supreme
Court ruled in Prine that Gunby's holding that a limiting instruction is necessary if
evidence is admitted under K.S.A. 2009 Supp. 60-455 does not apply if evidence of acts
or offenses of sexual misconduct is admitted under subsection (d). Prine, 297 Kan. 460,
Syl. ¶ 4. Our Supreme Court explained:

"[W]hen evidence was admitted under the unamended statute, in order to avoid the jury's
consideration of the evidence for prohibited propensity, we required a limiting instruction
listing the material facts in issue for which the evidence could be considered. [Citation
omitted.] Although neither party challenges the continuation of this judicially created
safeguard, its obsolescence under the amended statute is clear. In a sex crime prosecution
governed by new subsection (d), there remains no reason to tell jurors to ignore the
bearing prior sexual misconduct may have on the defendant's propensity to commit the
charged crime or crimes. If other sex crimes or civil wrongs are relevant, i.e., material
and probative of propensity, the jury may consider them for that. We no longer need the
workaround the limiting instruction hoped to ensure." Prine, 297 Kan. at 478-79.

Our Supreme Court addressed the interplay between Gunby and Prine in Breeden,
297 Kan. at 578-79. In Breeden, the court explained that if evidence was admitted under
K.S.A. 2012 Supp. 60-455(d), which permits propensity evidence, then a limiting
instruction is not necessary. 297 Kan. at 578. If, however, subsection (d) does not apply,
then the court's "analysis is governed by the provisions discussed in Gunby and other
cases imposing the requirement of a limiting instruction." 297 Kan. at 579. Therefore, as
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this case is controlled by K.S.A. 2014 Supp. 60-455(d), the district court did not err when
it failed to give a limiting instruction to the jury. If there is no error, there can be no clear
error. See State v. Betancourt, 299 Kan. 131, 135, 143, 322 P.3d 353 (2014).

SUFFICIENCY OF THE EVIDENCE TO SUPPORT AGGRAVATED INTIMIDATION OF A VICTIM

Harris next argues that this court must vacate his conviction for aggravated
intimidation of a victim. According to Harris, because the crime of aggravated
intimidation of a victim requires "a specific intent to keep the offense secret from a
specific class of people who all work in the legal system," Harris' act of simply telling
K.S. not to tell anyone about the sex acts is not enough to sustain a conviction for
aggravated intimidation of a victim. Instead, Harris argues there must be some ongoing
legal proceeding and a specific intent to prevent the victim from telling law enforcement.
Thus, as the State did not present any evidence about who K.S. was not to tell or that
Harris intended to thwart "the orderly administration of justice," Harris claims the
evidence was insufficient to find him guilty of aggravated intimidation of a victim.

The State disagrees with Harris' claim. First, the State contends that Harris'
argument is flawed because aggravated intimidation of a victim does not require some
ongoing legal proceeding; instead, Harris was charged with attempting to prevent K.S.
from reporting a crime, so no legal proceedings could have been initiated at the time he
threatened K.S. Second, Harris told K.S. not to tell anyone that he raped her; the State
contends that not telling anyone includes law enforcement. Therefore, the State argues
that the evidence was sufficient to permit a rational factfinder to find Harris guilty
beyond a reasonable doubt of aggravated intimidation of a victim.

When sufficiency of the evidence is challenged in a criminal case, an appellate
court reviews all the evidence in the light most favorable to the State and asks whether a
rational factfinder could have found the defendant guilty beyond a reasonable doubt.
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State v. Wilkins, 305 Kan. 3, 10, 378 P.3d 1082 (2016). In determining whether the
evidence was sufficient to support a conviction, an appellate court does not reweigh
evidence, resolve evidentiary conflicts, or make credibility determinations. 305 Kan. at
10.

The jury convicted Harris of aggravated intimidation of a victim in violation of
K.S.A. 2014 Supp. 21-5909, which provides that:

"(a) Intimidation of a witness or victim is preventing or dissuading, or attempting
to prevent or dissuade, with an intent to vex, annoy, harm or injure in any way another
person or an intent to thwart or interfere in any manner with the orderly administration of
justice:
. . . .
(2) any witness, victim or person acting on behalf of a victim from:
(A) Making any report of the victimization of a victim to any law enforcement
officer, prosecutor, probation officer, parole officer, correctional officer, community
correctional services officer or judicial officer . . .
. . . .
"(b) Aggravated intimidation of a witness or victim is intimidation of a witness or
victim as defined in subsection (a), when the:
. . . .
(4) witness or victim is under 18 years of age."

To find a defendant guilty of aggravated intimidation of a victim, the defendant
must have had the specific intent to prevent or dissuade the victim from reporting a crime
or participating in a trial or other proceeding; this intent can be "inferred from the
circumstances." State v. Foster, No. 113,059, 2016 WL 368090, at *3 (Kan. App. 2016)
(unpublished opinion) (citing State v. Dixon, 289 Kan. 46, 65, 209 P.3d 675 [2009]). The
State also must prove that the threat would have dissuaded a reasonable person in the
same situation as the victim from reporting the crime. State v. Phelps, 266 Kan. 185, 195,
967 P.2d 304 (1998).
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The crime of aggravated intimidation of a victim does not require that there is an
ongoing law enforcement investigation or court proceeding; "the crime of aggravated
intimidation is complete when the defendant, with the requisite intent, commits an act to
intimidate the victim." State v. Aguirre, 296 Kan. 99, 106, 290 P.3d 612 (2012). There are
no Kansas cases directly addressing whether a generalized threat not to tell anyone is
sufficient to prove that a defendant intimidated a victim with the intent to deter the
reporting of a crime. However, the Kansas Supreme Court and this court have upheld
convictions for aggravated intimidation of a victim in cases with facts similar to this one.
For example, in Aguirre, our Supreme Court ruled that aggravated intimidation of a
victim is not an alternative means crime and upheld a conviction where the defendant told
the victim not to tell anyone after he raped her. 296 Kan. at 101-02. However, the court
noted that the defendant was not explicitly challenging the sufficiency of the evidence to
support the crime. 296 Kan. at 104.

Similarly, in State v. Perez-Aguilera, No. 110,983, 2015 WL 1513990, at *7-8
(Kan. App. 2015) (unpublished opinion), this court rejected a defendant's argument that
the evidence at trial was insufficient to uphold his conviction for aggravated intimidation
of a victim because his conviction "rested solely upon the allegations of a young child,
without corroborating evidence." This court held that the victim's testimony that the
defendant consistently told her not to tell her mother that he sexually abused her because
her mother would not believe her "was legally sufficient for a rational and properly
instructed fact finder to have concluded beyond a reasonable doubt that [defendant] was
guilty of the crimes of conviction." 2015 WL 1513990, at *8.

Aguirre and Perez-Aguilera indicate that a generalized threat to the victim not to
tell anyone about a crime is sufficient to sustain a conviction for aggravated intimidation
of a victim. Here, Harris told K.S. that if she told anyone about the sex acts, he would kill
her stepmother and her pets in front of her and he would then kill K.S. It can be inferred
from the circumstances that when Harris threatened K.S. not to tell anyone he raped her,
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Harris specifically intended to dissuade K.S. from reporting his crime to the authorities,
including law enforcement. Moreover, this threat would have dissuaded a reasonable
person in K.S.'s situation from reporting the crime. We conclude there was sufficient
evidence, viewed in the light most favorable to the State, to allow a rational jury to find
Harris guilty beyond a reasonable doubt of aggravated intimidation of a victim.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT KIDNAPPING

Harris also argues that there was insufficient evidence to permit a rational jury to
find him guilty beyond a reasonable doubt of kidnapping. According to Harris, duct-
taping K.S.'s legs—without any other evidence—does not constitute kidnapping, which
requires a showing that he took or confined K.S. with the intent to hold her to facilitate
flight or the commission of a crime. The State disagrees and argues that K.S.'s testimony
at trial and her forensic interview, which was entered into evidence as State's Exhibit 22,
was sufficient to enable a rational jury to find that Harris forcibly confined K.S. in order
to facilitate the commission of a crime—namely, rape.

As previously discussed, when sufficiency of the evidence in a criminal case is
challenged, an appellate court asks whether after reviewing all the evidence in the light
most favorable to the State, a rational factfinder could have found the defendant guilty
beyond a reasonable doubt. Wilkins, 305 Kan. at 10. In resolving this issue, an appellate
court does not reweigh evidence, resolve evidentiary conflicts, or make credibility
determinations. 305 Kan. at 10.

The jury found Harris guilty of kidnapping in violation of K.S.A. 2014 Supp. 21-
5408(a)(2), which defines kidnapping as "the taking or confining of any person by force,
threat or deception, with the intent to hold such person . . . to facilitate flight or the
commission of any crime." The Kansas Supreme Court set out the test for whether the
element of "confinement" in order to facilitate the commission of another crime is met in
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State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976). The court in Buggs held that to
constitute kidnapping, the confinement:

"(a) Must not be slight, inconsequential and merely incidental to the other crime;
"(b) Must not be of the kind inherent in the nature of the other crime; and
"(c) Must have some significance independent of the other crime in that it makes
the other crime substantially easier of commission or substantially lessens the risk of
detection." 219 Kan. at 216.

Harris' argument boils down to a claim that duct-taping K.S. does not meet the
confinement element of kidnapping under the Buggs test. He argues that there was not
sufficient evidence introduced at trial to establish that his duct-taping K.S.'s hands and
legs was "more than inconsequential or incidental" to raping her, nor was there any
evidence that duct-taping a victim is "atypical" of rape.

This court addressed and rejected a similar argument in State v. Wieland, No.
89,176, 2004 WL 48167, at *5-6 (Kan. App. 2004) (unpublished opinion), rev. denied
277 Kan. 927 (2004). In Wieland, the defendant and his wife forcibly entered the victim's
home and used duct tape to bind her hands, feet, and mouth. The defendant's wife
searched the victim's house, and finding nothing of interest, left and went back to her car.
The defendant remained, and while the victim was still bound by the duct tape, he raped
her. 2004 WL 48167, at *1. On appeal, the defendant argued that the evidence was
insufficient to support his conviction for kidnapping because his use of duct tape to bind
the victim's hands and feet was merely incidental to other crimes. 2004 WL 48167, at *5.
This court disagreed and, applying Buggs, ruled that:

"First, it cannot be concluded that [the victim's] duct tape binding at the hands,
feet, and mouth was only slight, inconsequential, and merely incidental to other crimes.
Second, it is not inherent in the crime of rape and robbery to tie up the victim. Finally,
tying up [the victim] made the crimes much easier." 2004 WL 48167, at *6.
17

Here, K.S. testified that when she struggled as Harris attempted to rape her, Harris
duct-taped her hands behind her back; he also duct-taped her legs apart and to the
bathroom counter. These acts were not inconsequential or merely incidental to the rape.
Nor is it inherent in the crime of rape to duct-tape the victim's legs apart and to the
bathroom counter. Moreover, duct-taping K.S.'s hands behind her back and duct-taping
her legs apart made it substantially easier for Harris to rape K.S. We conclude there was
sufficient evidence, viewed in the light most favorable to the State, to allow a rational
jury to find Harris guilty beyond a reasonable doubt of kidnapping.

LIFETIME PAROLE

Harris' final claim on appeal is that the district court illegally sentenced him to
lifetime postrelease supervision. Specifically, Harris argues that lifetime postrelease
supervision cannot be imposed in conjunction with an off-grid sentence. Because Harris
received an off-grid sentence, he argues that this court must vacate his sentence of
lifetime postrelease supervision.

A court can correct an illegal sentence at any time. K.S.A. 22-3504(1). Whether a
sentence is illegal is a question of law over which an appellate court has unlimited
review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).

As noted by the State, Harris' claim fails because he was not sentenced to lifetime
postrelease supervision; he was sentenced to lifetime parole. At the sentencing hearing,
the district court initially stated that it was imposing a sentence of lifetime postrelease
supervision. However, the prosecutor pointed out that Harris' off-grid sentence required
the imposition of lifetime parole, rather than lifetime postrelease supervision. The district
court agreed and corrected the sentence. The journal entry of judgment correctly states
that Harris was sentenced to lifetime parole, not lifetime postrelease supervision.

18

Affirmed.