State v. Langston

NOT DESIGNATED FOR PUBLICATION

No. 115,552

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICHARD P. LANGSTON,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed October 13,
2017. Reversed and remanded.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant, and Richard P.
Langston, appellant pro se.

Ethan Zipf-Sigler, assistant district attorney, Mark A. Dupree, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., LEBEN, J., and PATRICIA MACKE DICK, District Judge,
assigned.

LEBEN, J.: Richard P. Langston was convicted on 20 counts of sexual exploitation
of a child after officers armed with a search warrant found 20 sexually explicit images of
girls on his computer. At trial, the court excluded Langston's attempt to present evidence
that others had access to the computer as well as evidence that another resident not only
used the computer but also had girls' toddler underwear and a child sex doll in his
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bedroom. The court excluded that evidence primarily because Langston's attorney hadn't
disclosed the witnesses at least 10 days in advance of trial.
But a defendant has a constitutional right to present his or her theory of defense,
and this testimony was critical here to Langston's defense, which was that he didn't know
these images were on the computer. Evidence that others had access to the computer, that
the computer passwords were written down in plain sight, that others had used the
computer without noticing the images (like Langston, he argues), and that another
resident who used the computer had children's underwear and a child sex doll in his
bedroom fit squarely within Langston's theory of defense. The total exclusion of this
evidence violated Langston's right to a fair trial, so we reverse the district court's
judgment and remand the case for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This case began with an anonymous tip that Langston had child pornography at his
apartment. Based on the tip, officers from the Kansas City, Kansas, Police Department
got a warrant to search his apartment, part of a four-plex living arrangement. They seized
a computer and a detached hard drive on a desk in a common area off the living room.

After the hard drive was assessed by a forensic examiner, the State charged
Langston with sexual exploitation of a child for possessing images of suspected child
pornography. The State ultimately tried Langston on 21 separate counts based on separate
images stored on a computer hard drive.

At the start of trial, before jury selection, the court asked defense counsel how
long he thought the defense case would take so that the court could give a realistic trial-
length estimate to potential jurors. When defense counsel said he had five or six
witnesses in addition to a defense expert, the court immediately inquired about whether
the witnesses had been disclosed to the State. When the prosecutor said they had not
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been, the court said that "the discovery process [the] Wyandotte County District
Attorney's Office utilizes that when you ask for discovery, you indicate [your witnesses]
what, within 10 days?" The prosecutor then said that the defendant "didn't proceed with"
a request for a copy of the State's file but argued "it's still mandated by statute that we
have to know within a reasonable time prior to [trial] if there's any discovery done under
the statute, which there was." The defense had separately obtained pretrial access, by
court order, for its expert to examine the computer drives and images. So the prosecution
objected to all defense witnesses except the defense's expert witness, who had been
disclosed before trial.

The court made an initial ruling that defense counsel couldn't mention these
witnesses in opening statement. The court then ordered: "So give 'em the names and see
what they can do with it in the next day . . . ." The court postponed final ruling to see
whether the State could sufficiently investigate the potential witnesses' testimony in that
time frame. The parties then proceeded with jury selection.

After that, the prosecutor asked to raise further issues about potential defense
witnesses. The State then objected to potential testimony from Langston's mother.
Langston's attorney said she would testify that she had seen numerous people using the
computers several months before the search of the apartment, knew that the passwords to
access the computers were written down in the communal area, and had never seen the
images at issue while she was using the computers. But the prosecutor argued that she
wasn't living in town during the time period of the search and when the State would show
at least some of the images were accessed. The State argued that her testimony would
violate the third-party evidence rule, which generally requires some evidence connecting
a third party to the crime before a defendant may offer evidence that the third party had
some motive to commit the offense. Defense counsel countered that the defense expert
would testify that some of the images had been downloaded while Langston's mother was
still in town.
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The court then asked for each attorney to separately address each of the
defendant's proposed nonexpert witnesses. Ultimately, Langston's attorney said he
wanted to call four other witnesses who would testify that they had seen many people
using the computer:
 John Bassett, manager of the complex where Langston's apartment was part of a
four-plex. Defense counsel said that he would also testify that he had witnessed
other people using the computer and that the passwords were readily available.
 Gerald Mason, who counsel said would testify that he had sold the computer
containing the hard drive to Langston and had downloaded family pictures for
Langston. Defense counsel also said Mason would testify that he had later repaired
the computer and hadn't become aware of any images of child pornography.
 Wanda Wileford, with whom Langston apparently lived for part of the time at
issue. Defense counsel said that she would testify that he was living with her
during some parts of the time period the State alleged he was possessing the
images to establish that he didn't have access or control of the computers.
 Carl Wilson, another resident of Langston's apartment, who defense counsel said
saw people other than Langston using the computer, none of whom saw
pornographic images.
Langston argued that this evidence was important to his defense because it suggested that
others had control of the hard drive and could have downloaded the files and that
someone could use the computer without being immediately aware of the images at issue,
which is what Langston claimed to have done.

The State objected to the admission of the previously undisclosed witnesses'
testimony on two grounds: (1) that the late disclosure had unduly prejudiced the State
because it was unable to fully investigate them; and (2) that the testimony would be
inadmissible under the third-party evidence rule.

5
The district court focused on the defense's failure to disclose these witnesses
before trial: "Just think of the magnitude of stuff you are throwing at the State, you know,
right now after we've conducted [jury selection]." At another point, after defense counsel
noted that there were dozens of people who had used the computer, the court said: "So
you think it's okay to be able to put the blame—and that's my word, not yours—on
dozens of people [with you] not ever having told the State a single name, not ever told the
State or the court the requisite information of a proffer that is required by Kansas law and
it's supposed to be okay? I tend to disagree." The court also asked: "Why didn't you
provide those [witness names] a long, long, long time ago as Kansas law requires?" The
court said it would leave the issue open for reexamination after the State presented its
evidence, but emphasized that "this is absolutely too late, it is absolutely insufficient—
too late an endorsement of witnesses to this magnitude."

The court ultimately allowed only Mason to testify, and only about how he had
sold the hard drive to Langston and downloaded family photos. The court refused to
allow Mason to testify to the fact that he had never seen child pornography on the
computer, concluding that this evidence was irrelevant and that Langston had failed to
give proper notice of the witness to the State.

Langston also sought to implicate his former roommate, Damian Eker, who could
not be located. Langston wanted to testify or introduce evidence that he had given the
hard drive to Eker; that Eker had access, expertise, and opportunity to use the computers;
and that police had found girls' toddler underwear and a child sex doll in Eker's bedroom.
The State objected that this too was disclosed only right before trial and the late notice
would be highly prejudicial; the prosecutor said detectives hadn't had an opportunity to
try to track Eker down and again argued that the evidence would violate the third-party
evidence rule. Langston argued that the third-party evidence rule didn't apply because
there was sufficient evidence connecting Eker to the crime: Eker had the ability to
exercise actual physical control over the hard drive and the expertise to download the
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files. The defense contended the child sex doll was evidence of Eker's motive to look at
child pornography. According to a detective’s affidavit, the doll was “a homemade
childsize doll” wearing children’s clothing, with “holes cut out where the vagina and anus
would be” and with what appeared to be bodily fluids on the clothing. But the district
court excluded the evidence, concluding it would violate the third-party evidence rule
because Langston hadn't established a sufficient connection between Eker and the
charges facing Langston.

In presenting its case, the State called Corporal Thad Winkelman from the
Shawnee County Sheriff's Department to testify about the evidence recovered on the hard
drive. Winkelman had received special training as a forensic examiner in collecting,
examining, and preparing digital evidence. Winkelman testified that the username on the
hard drive was "Cali," which was associated with Langston. The hard drive was set up so
that the "Cali" username pathway opened to a desktop with several content folders.
Winkelman explained where each of the charged images was located and the date that the
image was last opened or accessed. The images were found saved in several different
folders and subfolders with labels including "young ones," "daddy's SP friends," "good
porn pics," "XXX," and "lil ones." Winkelman testified that the hard drive also contained
nonpornographic images and files linked to Langston, including family photos and
videos, which were kept in a folder titled "photos of fam, faith, me and Sam."

As part of the forensic examination, Winkelman also examined the images to
determine whether they had been modified in some way. In his opinion, although some of
the images had been enhanced, none appeared to have had their content changed. On
cross-examination, the defense asked him about pixilation in some of the images.
Winkelman attributed the pixilation to the process of transferring the photos, which
required compressing and decompressing the image.

7
The State also called Elizabeth Frazier to testify. She testified that she had gone to
Langston's home multiple times to do drugs with him and had been arrested there for
drug use. She stated that on a few occasions she had seen Langston on the computer
looking at images of young girls with no pubic hair and small, undeveloped breasts
engaging in sexual conduct. She testified that she did not report it to the authorities and
had only told detectives about it after they approached her during their investigation of
Langston.

Detective Jackie Lynn of the Kansas City, Kansas, Police Department also
testified on behalf of the State. She worked in the Child Abuse Unit at the time and was
assigned to investigate an anonymous tip to the Kansas Department of Children and
Families. Another officer reached out to Elizabeth Frazier because Frazier knew
Langston. It was based on Frazier's information that the officers got their search warrant
for Langston's apartment. Lynn testified that she was concerned because officers found
toddler-sized girls underwear all over the apartment and did not believe any child was
living there. On cross-examination, the defense questioned Lynn about the anonymous
tip, which had alleged that Langston possessed child pornography including images of his
10-year old daughter. Lynn testified that Langston told her that he did not have a 10-year
old daughter and that the information had come solely from the anonymous tip. Defense
counsel also attempted to ask Lynn about a child sex doll that was found in Eker's room,
but the court concluded that the testimony was irrelevant to whether Langston possessed
child pornography and excluded it.

The State also called Dr. Terra Frazier, a child-abuse pediatrician, as an expert
witness. She was asked to assess the age of the people in the images found on the hard
drive and had done this type of examination on other occasions. She testified that it was
her expert opinion that the charged images all showed children under the age of 18,
although she did note that exhibits 12, 20, 23, and 24 featured girls who were more
mature and developed than the other photos.
8

In presenting his defense, Langston called Joseph Wilson, a managing partner of
JNJ Tech, who had experience in manipulating photos as part of his work. He testified
that he believed exhibits 5, 10, 17, 18, 19, and 25 had evidence of manipulation due to
pixilation and other traits of the images. Wilson also testified that technology can be used
to digitally manipulate photos of adults to look as if they were under the age of 18. He
acknowledged that he had no previous experience in child-pornography cases and had
never used age-regression technology in his work. On cross-examination, he agreed that
19 of the 21 images were not pixilated near the breast or pubic area.

Langston also testified in his own defense. He said that he had two computers—
the hard drive with the challenged images was in a computer he had purchased from
Gerald Mason. He said the other computer had been inherited and should have been up in
his office; he said he didn't know why it was found downstairs in the common area when
police searched the apartment. Langston said he had been away from the home for long
periods of time in 2012 and 2013.

Langston admitted that he'd had some illegal drugs in the apartment. He said that
when he saw police arrive to search the house, he gathered up drugs and other evidence
of illegal activities and took off in his truck. Having left the computer hard drive with the
challenged images behind, Langston sought to raise the inference that he didn't know
there were illegal images on that computer. Langston specifically testified that he had no
knowledge of the images and that had he known about the images, he would have
removed them with the other illegal items. He also said that he had never looked at any
pornographic images in front of Elizabeth Frazier. Langston said Frazier had a reason to
lie because they had slept together once and had a falling out that resulted in her
threatening to have him beat up.

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The jury found Langston guilty of 20 of the 21 counts of sexual exploitation of a
child under the age of 18. (The jury found him not guilty with respect to one specific
image.) The district court sentenced Langston to serve 89 months in prison. The court's
original sentence included a 24-month period for postrelease supervision, but the court
later corrected that and imposed lifetime postrelease supervision in accordance with the
sentencing statutes for this offense.

Langston has appealed to our court. In our decision, we will generally cite to
statutory provisions as they existed at the time of Langston's offenses, though we are not
aware of any change in them that would significantly affect the issues we will be
addressing.

ANALYSIS

I. The District Court Erred When It Precluded Key Evidence in Support of the
Defendant's Case.

A defendant is entitled to present his or her theory of defense. Accordingly, the
exclusion of evidence that is key to the defense case violates a defendant's fundamental
right to a fair trial. State v. Maestas, 298 Kan. 765, 781, 316 P.3d 724 (2014). And while
the defendant's right may be limited by rules of evidence, 298 Kan. at 781, those limits
may not be applied arbitrarily or disproportionately to legitimate state interests. Rock v.
Arkansas, 483 U.S. 44, 55-56, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). Doing so would
violate a person's Sixth Amendment right to call witnesses in one's own defense. Rock,
483 U.S. at 52; State v. Suter, 296 Kan. 137, 143-44, 290 P.3d 620 (2012). An appellate
court reviews a claim that a defendant was denied the constitutional right to present his or
her defense independently, without any required deference to the district court. Maestas,
298 Kan. at 780.

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To consider what might be essential to Langston's defense at trial, we must start
with what the State had to prove to convict him. The State charged Langston with 21
counts of sexual exploitation of a child for possessing 21 separate images. The State had
to prove that Langston possessed visual depictions of a child under 18 years old shown
engaging in sexually explicit conduct—and that he did so with the intent either (1) to
arouse or satisfy the sexual desires or (2) to appeal to the prurient interests of himself or
another person. See K.S.A. 2012 Supp. 21-5510(a)(2). To prove that Langston possessed
the materials, the State had to prove that he had either joint or exclusive control over each
image "with knowledge of or intent to have such control" or that he kept them
"knowingly . . . in a place where [he had] some measure of access and right of control."
See K.S.A. 2012 Supp. 21-5111(v).

With what the State had to prove to convict in mind, Langston's defense was
straightforward: He argued that he didn't know the images were on the computer hard
drive. If the jury had a reasonable doubt about whether he had that knowledge, it couldn't
convict him.

In context, then, the district court's limitations on the evidence Langston could
present were very significant. The State argues that Langston was still able to present his
basic defense. After all, he testified that he didn't know about the images. But without
corroboration from other witnesses or some key fact he might cite that would have been
inconsistent with his having had knowledge of the images, his case would be quite weak.
A defendant's constitutional right to present his or her defense isn't met simply by
allowing the defendant to present a weak case while excluding the best evidence that
could support the defense case.

The evidence Langston cites on appeal would have helped corroborate his claim
that he didn't know about the photos:
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 Two witnesses (Bassett and Wilson) would have testified that others used the
computer without knowing there were illicit images accessible there. This would
have made it more believable that Langston could have used the computer without
having knowledge of the images.
 Bassett also would have testified that the passwords needed to get access to
various files and folders on the computer's hard drive—including those containing
the images—were readily available. During deliberations, the jury sent several
questions, including what the password was and how the password was known.
Such questions would be relevant if one or more jurors wondered either how easy
the password would have been to guess or whether it was available to others in the
apartment. Someone had to have put the images on the hard drive. If the password
giving access to those files was widely known or readily discoverable, that would
have made it more believable that Langston had no knowledge of the images
because someone else had put them there.
 Langtston's own testimony that he had given the specific hard drive that contained
the images at one point to Damien Eker, who then lived in the apartment, similarly
showed that another person had access to the location where the illicit images
were found.

It's important to keep in mind the State's duty to prove that Langston had either
joint or exclusive control over each image. The situation is much like one more typically
encountered by police—drugs found in a car with several occupants. If drugs are found in
the center console, many facts might be relevant in deciding whether the driver, the front-
seat passenger, or a back-seat passenger possessed the drugs. Was it the driver's car? Did
one of the passengers often drive the car? Had anyone else driven the car recently? Was
the console locked and, if so, who had access to the key? Questions like these could be
relevant because simply being in possession of a car that contains drugs or having access
to the drugs isn't enough to prove possession: there must be other evidence tying the
defendant to the drugs to prove a criminal charge of drug possession. State v. Rosa, 304
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Kan. 429, Syl. ¶ 3, 371 P.3d 915 (2016); State v. Keel, 302 Kan. 560, Syl. ¶ 2, 357 P.3d
251 (2015).

The situation here with Langston's computer is essentially the same. Under
Langston's proffered evidence, many people had access to the place where the illicit
images were found. We found one case similar to Langston's in the context of drug
possession—State v. Hedge, 297 Conn. 621, 636-37, 646, 1 A.3d 1051 (2010), from the
Supreme Court of Connecticut. In Hedge, the defendant had been stopped while driving
his girlfriend's car, and officers found drugs in hidden panels in the car. The trial court
excluded defendant's proffered evidence that the girlfriend had loaned the car for a
significant time period (most of the week leading up to the defendant's arrest) to another
man, a convicted drug dealer, including within 24 hours of the arrest. The Connecticut
Supreme Court agreed with the defendant that the trial court had violated the defendant's
constitutional right to present his defense: "[T]he trial court's exclusion of the . . .
evidence deprived the defendant of the opportunity to present his version of the facts to
the jury and to explain to the jurors who, if not him, committed the offenses . . . ." 297
Conn. at 637.

In Langston's case, the district court gave two reasons for excluding the testimony
he offered about the access others had to these computers and Eker's potential role in
placing the images there—the third-party witness rule and the timing of the defendant's
identification of his trial witnesses. Neither provides a valid basis for exclusion.

The third-party-evidence rule is of limited scope and not applicable to most of the
evidence at issue here. It comes into play when a defendant tries to prove that a third
person—not the defendant—committed the offense the defendant is charged with. In that
situation, the defendant isn't allowed to present evidence that the third person had some
motive to commit the offense unless there is other evidence (beyond mere motive)
connecting the third party to the crime. State v. Marsh, 278 Kan. 520, 530-31, 102 P.3d
13
445 (2004), rev'd on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516,
165 L. Ed. 2d 429 (2006); see also State v. Carr, 300 Kan. 1, 199-203, 331 P.3d 544
(2014), rev'd on other grounds by Kansas v. Carr, 577 U.S. ___, 136 S. Ct. 633, 193 L.
Ed. 2d 535 (2016); State v. Hopkins, No. 110,581, 2015 WL 1310081, at *7-9 (Kan. App.
2015) (unpublished opinion). Except for evidence related to Eker, the defense sought to
present the testimony to increase the credibility of defendant's denial of knowledge that
the images were on the computer hard drive at all, not to connect a specific third party to
the crime. So the third-party-evidence rule wouldn't apply except potentially as to
testimony about Eker.

As to Eker, the combination of the evidence Langston sought to present—not only
that he had given the hard drive at one time to Eker but also that Eker had girls' toddler
underwear and a child sex doll in his room—was intended to suggest Eker committed the
offenses. Thus, the third-party evidence rule could be applied here, potentially to exclude
the evidence. But in addition to evidence of motive (the materials found in Eker's room),
there also was evidence connecting Eker to the computer hard drive on which the images
were found. Like the evidence against Langston, the evidence against Eker is
circumstantial. But in a case in which the State is presenting a circumstantial criminal
case against Langston, the defendant's right to present a defense tips the balance in favor
of allowing him to present a circumstantial case against another party—given that there is
evidence here beyond mere motive. By connecting Eker to this computer and hard drive,
the defense essentially put Eker at the crime scene. See State v. Burnett, 300 Kan. 419,
432-33, 329 P.3d 1169 (2014); Hopkins, 2015 WL 1310081, at *7-9. See generally
Schwartz and Metcalf, Disfavored Treatment of Third-Party Guilt Evidence, 2016 Wis.
L. Rev. 337, 346-47, 397-98 (2016). We conclude that Langston's constitutional right to
present his defense also required the admission of the Eker evidence.

The district court's ruling about the timing of the defendant's disclosure of
witnesses is harder to pin down. In its brief on appeal, the State doesn't provide an
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affirmative defense of the district court's timing ruling on its merits. Instead, the State
argues that Langston hasn't shown that the timing ruling was in error; based on that, the
State contends we should uphold the district court based on a failure in Langston's
briefing on appeal.

In response, Langston argues that he discussed only the third-party evidence rule
in his initial appellate brief because the State's timing argument in the district court was
specifically tied to that rule. As Langston notes, the prosecutor told the district court that
"'because they didn't tell us until Monday morning that they were going to be pleading
this third party evidence . . . we've been completely deprived of any opportunity'" to rebut
it. Since the State's timing argument to the district court was tied to the third-party
evidence rule—and the defense squarely argued in its initial appellate brief that the third-
party evidence rule didn't apply here—we agree that the defense has not waived the
timing issue by a failure to brief it.

What's harder to figure out—notwithstanding that the prosecutor's timing
argument to the district court was tied to the third-party-evidence rule—is what the actual
basis was for the district court's ruling regarding timing. At one point, the district court
appeared to tie its ruling to the cases regarding third-party evidence: "It's just ridiculous
. . . that [the disclosure is] this late in time. Cases in Kansas are not like that and that's not
what the cases [the prosecutor cited] hold." The cases cited by the prosecutor all related
to the third-party-evidence rule, which didn't apply and doesn't have a specific time
standard.

More generally, there is no Kansas statute requiring that criminal defendants
identify all witnesses in advance of calling them at trial. See State v. Coleman, 253 Kan.
335, 347, 856 P.2d 121 (1993). The criminal-discovery statute, K.S.A. 2016 Supp. 22-
3212, provides only that the defense provide certain disclosures of expected testimony
from expert witnesses if the defense makes specified requests for disclosures by the
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prosecution. See K.S.A. 2016 Supp. 22-3212(c). The statute also allows for other court
orders, K.S.A. 2016 Supp. 22-3212(e), or agreements about disclosures by the parties,
K.S.A. 2016 Supp. 22-3212(f), but the district court didn't mention any of these when it
made its ruling. And while there is a statutorily required notice of alibi witnesses, K.S.A.
2016 Supp. 22-3218, most of the excluded evidence had nothing to do with an alibi (that
Langston was somewhere else when the crime was committed)—it simply showed that
others could have put the images on the computer.

The district court referenced a "discovery process [the] Wyandotte County District
Attorney's office utilizes that when you ask for discovery, you indicate [your witnesses]
what, within 10 days?" But the prosecutor immediately responded that Langston's
attorney hadn't proceeded with a request to copy the State's file. Even so, the prosecutor
said that pretrial disclosure by the defense was "still mandated by statute that we have to
know within a reasonable time prior to [trial] if there's any discovery done under the
statute, which there was." The only pretrial discovery we've noted in our record is that the
defense obtained pretrial access, by court order, for its expert to examine the computer
hard drive and images. But that would at most have triggered a requirement that the
defense disclose its expert witness, see K.S.A. 2016 Supp. 22-3212(c), which apparently
occurred.

In the defendant's reply brief, his attorney says that there was an agreed pretrial
order for reciprocal discovery under which the defense did agree to provide a list of
defense witnesses at least 10 days before the trial. If such an agreement was made, it's not
in our record. But even if such an agreement existed and was placed in an enforceable
court order, the district court still is not supposed to impose the most severe sanction—
forbidding the calling of undisclosed defense witnesses—except as a last resort. Before
entering such an order, the court must first consider a series of factors, known as "the
Bright factors" after the first case to provide them, such as whether prejudice to the State
can be avoided by a recess or delay in the trial. See Coleman, 253 Kan. at 347-51; State v.
16
Bright, 229 Kan. 185, 194, 623 P.2d 917 (1981). The last of the Bright factors counsels
that the "trial court should . . . avoid imposing the severe sanction of prohibiting the
calling of the witness if at all possible. This should be viewed as a last resort." 229 Kan.
at 194.

The court did inquire at one point about the possibility of the State investigating
these witnesses—but it did not consider a possible recess or delay of the trial. When the
prosecutor responded that the detective who would normally handle any further
investigation would be tied up testifying in court at trial, the court did not explore the
possibility of a recess or trial delay. Instead, the court restated its view that the witness
disclosures were "absolutely too late."

The State has not suggested—and our record does not show—that the district court
either cited to or considered the Bright factors. So even if there was some enforceable
requirement that the defense provide a witness list 10 days before trial, the district court's
failure to consider the Bright factors and try to remedy the nondisclosure with some
sanction short of prohibiting the testimony altogether would be an abuse of discretion.
See Coleman, 253 Kan. at 351. We note too that at most, the defense was obligated to
provide witness names, not the content of expected testimony.

In sum, the evidence at issue was quite significant to the defendant's case; the
district court precluded it primarily on the basis that the defendant should have disclosed
his witnesses long before trial; and the district court did not consider the Bright factors.
Based on our review of the record, we conclude that the district court's rulings interfered
with Langston's constitutional right to present his defense. We therefore reverse the
defendant's convictions and remand the case for a new trial.

17
Although we are ordering a new trial based on our review of the first issue
Langston raised on appeal, some of his other issues would be relevant to any retrial. We
proceed to consider those issues.

II. The District Court Did Not Err by Choosing Not to Instruct the Jury on the Defense of
Ignorance or Mistake.

Larson's next claim is that the district court should have given the jury an
instruction about the defense of ignorance or mistake. What instructions should be given
will arise again on remand, so we will address this issue.

While the attorneys were discussing jury instructions with the district court, the
parties agreed that the State had to prove Langston acted with a culpable mental state in
committing each act of sexual exploitation of a child. That made sense—in Kansas, a
culpable mental state is an essential element of every crime unless a statute plainly
provides otherwise. K.S.A. 2012 Supp. 21-5202(a), (d); see State v. Heironimus, 51 Kan.
App. 2d 841, 850, 356 P.3d 427 (2015).

Much of the time, all the State must prove is the general intent to commit the
conduct that constitutes the crime. See K.S.A. 2012 Supp. 21-5202(a), (e); State v.
Howard, 51 Kan. App. 2d 28, 47, 339 P.3d 809 (2014), aff'd 305 Kan. 984, 389 P.3d
1280 (2017). To prove general intent, the State need only prove that the defendant acted
intentionally in the sense that the defendant was aware of what he or she was doing. 51
Kan. App. 2d at 46. If the person knew what he or she was doing and those acts constitute
a crime, the defendant has knowingly committed that crime—even if the defendant didn't
intend to break the law.

The district court's instructions followed the State's suggestion that it need only
prove general intent: "The State must prove that the defendant committed the crime
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sexual exploitation of a child knowingly. A defendant acts knowingly when the defendant
is aware of the nature of his conduct that the State complains about." The defense agreed
to that instruction, and no issue about it has been raised in this appeal.

Langston then requested that the court instruct the jury on the defense of ignorance
or mistake based on a pattern jury instruction. That instruction provides: "It is a defense
in this case if by reason of ignorance or mistake the defendant did not have at the time the
mental state which the statute requires as an element of the crime." PIK 4th Crim. 52.090.
Langston argued that his ignorance that the images were on the computer at all meant that
he couldn't have knowingly possessed them.

Langston preserved this issue for appellate review by requesting the instruction at
trial, so we proceed to consider whether the instruction was legally appropriate. If so, we
would then proceed to consider whether it was factually appropriate based on the
evidence in this case. And if the instruction was both legally and factually appropriate—
and thus should have been given but wasn't—we would then determine whether the error
caused prejudice to Langston or was harmless. See State v. Salary, 301 Kan. 586, Syl. ¶
1, 343 P.3d 1165 (2015).

We find no error because Langston's proposed instruction wasn't legally
appropriate. The part of the offense that Langston was contesting was knowing
possession of the images, something for which only general intent (knowing conduct)
was required. If he possessed them, the State also had to show he did so with the intent to
arouse or satisfy sexual desires or to appeal to prurient interests. See State v. Zabrinas,
271 Kan. 422, 439, 24 P.3d 77 (2001). The jury was properly instructed about that too,
and the intended use of the images isn't what was at issue in Langston's proposed
instruction.

19
So what would Langston's proposed instruction have added to the jury's
consideration about whether he knowingly possessed the images? Nothing. The State had
to prove he knowingly possessed the images; under the instruction the court gave,
Langston had to be "aware of the nature of his conduct that the State complains about"—
he had to know he possessed the images.

The defense of mistake of fact or ignorance is applicable when more than mere
general intent (the defendant knew what physical actions he or she was taking) is at issue.
For the crime of aggravated interference with parental custody, for example, a parent who
took a child with her and didn't know that the child had been placed in state custody
wouldn't have the specific intent required for that crime. Committing that crime requires
that the defendant have the specific intent to detain or conceal a child from the lawful
custodian. See State v. Ortega, 300 Kan. 761, 779-85, 335 P.3d 93 (2014). So in that
case, the defendant must know not only the physical acts being taken (such as driving
away with a child in tow) but also intend to interfere with the custody order. But the
defense of mistake of fact or ignorance only applies in specific-intent crimes; it has no
application to crimes like the ones Langston was charged with because—at least with
respect to the possession element that Langston challenges here—only general intent had
to be proved. See State v. Diaz, 44 Kan. App. 2d 870, 873-75, 241 P.3d 1018 (2010).

Even if we had concluded that the district court erred by failing to give the
instruction, however, the error would have been harmless. If an error occurred, we
assume it would have been a constitutional error since Langston argues that this
instruction was necessary to the very presentation of his defense. Accordingly, for the
error to be harmless, the State must show beyond a reasonable doubt that there is no
possibility the error contributed to the verdict. State v. Atkins, 298 Kan. 592, 599, 315
P.3d 868 (2014). Even with this high burden, we find any error to have been harmless.

20
The court specifically instructed the jury that the State had to prove that Langston
"possessed" the images. The court also instructed that possession meant having "joint or
exclusive control over an item with knowledge of or intent to have such control" or
"knowingly keeping some item in a place where the person has some measure of access
and right of control." And the court instructed the jury that if it had any reasonable doubt
as to the truth of any of the claims the State had to prove, the jury must find the defendant
not guilty. The defendant's proposed instruction really added nothing. If "by reason of
ignorance or mistake the defendant did not have . . . the mental state which the statute
requires as an element of the crime," the instruction the defense wanted given, Langston
wouldn't have known that the items were there.

As Langston's appellate lawyer puts his contention on appeal, "Here, Mr.
Langston's defense was not to dispute the existence of the images; rather, he claimed
ignorance of the possession." No one could dispute that the photos were on a computer to
which Langston had access. Langston's defense was simple: he didn't know they were
there. The court told the jury it had to find that Langston had control over the images
"with knowledge of or intent to have such control" or that he "knowingly [kept them] in a
place where [he had] some measure of access and right of control." In either case, the
State had to prove Langston knew the images were there. We presume the jury followed
those instructions, State v. Kleypas, 305 Kan. 224, 279, 382 P.3d 373 (2016), cert. denied
137 S. Ct. 1381 (2017), and we find any error on this point to have been harmless beyond
a reasonable doubt.

III. Langston Has Not Shown That the Statute Prohibiting Sexual Exploitation of a Child
Is Unconstitutional.

Langston next argues that the statute making criminal exploitation of a child
illegal, K.S.A. 2012 Supp. 21-5510(a)(2), is so broadly written that it criminalizes speech
protected under the First Amendment to the United States Constitution. He specifically
21
complains that the statute reaches "virtual" child pornography, even images that might
not have used an actual child in their creation.

Before we get to the substance of Langston's argument, we must consider whether
he has standing, or the legal ability, to raise this issue. The State's evidence included the
testimony of Corporal Thad Winkelman, who testified that none of the images appeared
to have had their content digitally altered in any significant way. And a pediatrician,
Dr. Terra Frazier, testified that all of the photos showed children under age 18. So
Langston's claim that the statute reaches protected speech doesn't apply to his own case:
he makes no claim that the State cannot outlaw sexually explicit photos of children.

Normally, a party can't raise a hypothetical issue that doesn't apply to that party.
But when the claim is that a statute is so broad that it interferes with First Amendment
free-speech rights, there is no absolute requirement that a person attacking a statute as
overbroad be directly affected. See Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S. Ct.
2908, 37 L. Ed. 2d 830 (1973); State v. Williams, 299 Kan. 911, 919, 329 P.3d 400
(2014). This exception allows a litigant to challenge the statute because an overbroad
statute may cause others not before the court to refrain from constitutionally protected
speech even if the litigant's own rights aren't violated. Broadrick, 413 U.S. at 612. We
may proceed to consider his argument. Williams, 299 Kan. at 919.

To discuss Langston's specific arguments about why the statute is too broadly
written, we need to review the statute's wording. The conduct prohibition applicable here
covers visual depictions of a child engaged in sexually explicit conduct:

"(a) Sexual exploitation of a child is:
. . . .
(2) possessing any visual depiction of a child under 18 years of age shown or
heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual
22
desires or appeal to the prurient interest of the offender or any other person." K.S.A. 2012
Supp. 21-5510(a)(2).
The statute then provides two key definitions. Langston notes that the first, defining
"sexually explicit conduct," covers both actual and simulated conduct:

"'Sexually explicit conduct' means actual or simulated: Exhibition in the nude;
sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital or oral-
anal contact, whether between persons of the same or opposite sex; masturbation; sado-
masochistic abuse with the intent of sexual stimulation; or lewd exhibition of the genitals,
female breasts or pubic area of any person. K.S.A. 2012 Supp. 21-5510(d)(1).

Langston also points to the inclusion of digitally or computer-generated images in the
statute's definition of "visual depiction":

"'[V]isual depiction' means any photograph, film, video picture, digital or
computer-generated image or picture whether made or produced by electronic,
mechanical or other means." K.S.A. 2012 Supp. 21-5510(d)(5).

Based on these statutory provisions, Langston contends the statute reaches out to
conduct protected under the First Amendment in two ways. First, he argues that inclusion
of computer-generated images "encompasses digitally created images that appear to be a
minor child but are not digital images of a real minor child." Second, he argues that
inclusion of simulated acts "may include images of children digitally altered so as to
merely simulate nudity without any capturing of actual child nudity." Given these broad
definitional sections, he argues that the statute outlaws constitutionally protected free
speech under the United States Supreme Court's decision in Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002). In Ashcroft, the
Court struck down a federal statute that made illegal images that merely appeared to be of
a minor engaging in sexually explicit conduct but actually didn't involve any child in
their production. The Court held that the First Amendment offered no protection to
23
"pornography produced with real children," 535 U.S. at 246, but that this federal statute
went too far when it regulated "virtual pornography" that was not legally obscene. 535
U.S. at 246, 256.

We need not spend our time considering Langston's first argument, that this
Kansas statute prohibits digitally created images that aren't of a real child. The State
contends that the statute only reaches the visual depiction of a real child, and that's a fair
reading of the statutory language. The key prohibition in the statute talks of the "visual
depiction of a child," not of someone who appears to be a child. And while the later
definition of sexually explicit conduct allows for "actual or simulated" conduct, that
doesn't suggest that a simulated child is covered. Given the ruling in Ashcroft and the
preference for reasonable interpretations that avoid serious constitutional challenges to a
statute, interpreting this statute to cover only depictions made using a real child is quite
reasonable. See State v. Ryce, 303 Kan. 899, 906, 368 P.3d 342 (2016); State v. Soto, 299
Kan. 102, 121, 322 P.3d 334 (2014).

We turn then to Langston's argument that the statute's coverage of morphed
images that look like children engaged in sexually explicit conduct covers protected
speech. On this point, the State agrees that "non-sexualized images of real children that
have been altered to make those real children look to be engaging in sexually explicit
acts" are covered by the statute. The State argues that does not violate anyone's First
Amendment rights, citing our court's decision in State v. Coburn, 38 Kan. App. 2d 1036,
1064-65, 176 P.3d 203 (2008), which concluded that this Kansas statute could
constitutionally prohibit images made using real children and then altered to simulate
sexually explicit conduct.

In Coburn, our court noted that the Ashcroft opinion had specifically declined to
address the constitutionality of innocent photographs taken of real children that were
24
altered so that the children appeared to be engaged in sexual activity. 38 Kan. App. 2d at
1064 (citing Ashcroft, 535 U.S. at 242). But our court noted that even without addressing
the constitutionality of a prohibition of such images, the Ashcroft Court said that images
like that "did 'implicate the interests of real children and are in that sense closer to the
images" of child pornography it had found a state could prohibit in New York v. Ferber,
458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982). 38 Kan. App. 2d at 1064. Our
court concluded that the State's interest in protecting children sufficiently outweighed any
free-speech interests and upheld application of the Kansas child-exploitation statute to
photos of real children that were altered to make the children appear to be engaging in
sexually explicit conduct (and meeting the other statutory requirements). 38 Kan. App. 2d
at 1064-65.

Langston argues that Coburn was wrongly decided and asks us to reject its
holding. That claim is not a trivial one. A reasonable argument can be made that a statute
that goes beyond the prohibition of images created by harming children through sexual
exploitation or abuse to a prohibition of initially innocent images in which the children
weren't harmed in making the images does infringe on constitutionally protected speech.
See Hessick, The Limits of Child Pornography, 89 Ind. L.J. 1437 (2014).

To address the argument Langston has made here, though, we need not make that
call. While Langston does have standing to challenge this statute on overbreadth grounds,
to succeed he must show that (1) the protected activity is a significant part of the conduct
the law has targeted and (2) there's no satisfactory method to sever the law's
constitutional applications from its unconstitutional ones. Dissmeyer v. State, 292 Kan.
37, 40-41, 249 P.3d 444 (2011); see United States v. Williams, 553 U.S. 285, 303, 128 S.
Ct. 1830, 170 L. Ed. 2d 650 (2008); Ashcroft, 535 U.S. at 244.

25
Our case is unlike Ashcroft, where the Court noted that the statute at issue could
have reached Renaissance paintings and Oscar-winning movies and the material was
banned even if it did not appeal to prurient interests. 535 U.S. at 246-49. In those
circumstances, the Court concluded that the statute was unconstitutionally overbroad
because it "abridge[d] the freedom to engage in a substantial amount of lawful speech."
535 U.S. at 256.

Langston has not shown that the sort of situation found in Ashcroft, where the law
targeted substantial areas of protected speech, is found here. As the Ashcroft Court noted,
"If virtual images were identical to illegal child pornography, the illegal images would be
driven from the market by the indistinguishable substitutes. Few pornographers would
risk prosecution for abusing real children if fictional, computerized images would
suffice." 535 U.S. at 254. Yet the significant market appears to be images made through
the abuse of children, not nonsexualized images of real kids that have been morphed to
make them look sexually explicit.

On the record before us, Langston has not shown that a significant part of the
targeted conduct is protected under the First Amendment. Accordingly, he has not shown
that the statute is unconstitutionally overbroad such that it cannot be enforced.

IV. The Search Warrant Used to Search Langston's Residence Was Valid.

In a supplemental brief, Langston argues that the search warrant for his residence
was invalid. First, he argues that it didn't describe the place to be searched with sufficient
particularity. The warrant had called for a search of apartment B1, while Langston lived
in apartment B2. Based on the officers' briefing before the search, though, they searched
the intended apartment, B2, not the one mistakenly listed in the warrant. Second,
Langston argues that the affidavit supporting the warrant wasn't sufficient to give
probable cause to search his apartment.
26

As for the mix-up on the apartment number, an inaccuracy in the address to be
searched doesn't necessarily invalidate a search warrant. The Nebraska Supreme Court
upheld the warrant in a similar case in which the wrong apartment number was given but
other information provided to the officer allowed the officer to find the correct place for
the search. State v. Walters, 230 Neb. 539, 546-48, 432 N.W.2d 528 (1988). Similarly,
the Washington Court of Appeals upheld a warrant when the officer who executed it had
sufficient knowledge of the location to be searched to cure the address mistake found in
the warrant. State v. Bohan, 72 Wash. App. 335, 339, 864 P.2d 26 (1993). Accord United
States v. Gamboa, 439 F.3d 796, 806 (8th Cir. 2006).

In our case, Detective Jackie Lynn filed an affidavit in support of the warrant. She
said he lived in apartment B1 instead of B2, but she also said that the apartment was
accessed from the south side of the building and had the only door on the south side,
lower level of the building. The officers executing the warrant were briefed based on
surveillance from other officers that the apartment to be searched was on the south side of
the building and to the left if one was facing the back of the building. When police
carried out the warrant, they searched the correct residence, apartment B2, Langston's
residence.

The Fourth Amendment does require that search warrants particularly describe the
place to be searched. Our Supreme Court has held, consistent with the cases we've
already noted, that for a warrant for a multiple-occupancy building, "a slight omission or
inaccuracy" doesn't invalidate a warrant "where the description of the subunit is sufficient
to enable the executing officer to locate the premises with reasonable certainty." State v.
Gordon, 221 Kan. 253, 259, 559 P.2d 312 (1977). The officers executing the warrant in
this case had sufficient information to get the right unit with reasonable certainty even
though the apartment number was incorrect. The warrant should not be held invalid on
the basis that it didn't sufficiently describe the premises to be searched.
27

Langston's other argument about the warrant's validity posits that police couldn't
properly rely upon an informant who provided some of the information because she was
unreliable. Langston didn't make this argument before the district court, and we can't
consider it for the first time on appeal. See State v. Cox, 51 Kan. App. 2d 596, 603, 352
P.3d 580 (2015). When a defendant wants to challenge the probable-cause basis for an
affidavit, and especially when he seeks to do so with a claim that some information (here,
going to the reliability of the informant) was omitted, the proper course is to ask for a
hearing in the district court, where the court can take evidence, if necessary, on the
matter. See State v. Mell, 39 Kan. App. 2d 471, 487-88, 182 P.3d 1 (2008). We decline to
consider this issue when raised for the first time on appeal.

V. Because a New Trial Is Ordered, No Other Issue Requires Our Review.

In addition to the issues we have discussed so far, Langston also raises a claim that
the prosecutor made improper statements in closing argument and that an aspect of his
sentencing was unlawful.

As for the prosecutor's comments, one related to the possibility that some of the
photos had been digitally manipulated. The comments seem consistent with our court's
holding in Coburn, and the State has emphasized in its appellate brief that the photos
must show a real child under age 18 to fit under this statute. Accordingly, it seems
unlikely that the prosecutor's comment at any retrial on this topic would be outside the
bounds of fair argument. The other comment related to evidence about what the
anonymous tipster had said about one of the images possibly being of Langston's
daughter. The parties had agreed that the State wouldn't present that information, but
defense counsel brought it out when cross-examining Detective Lynn. If the defense puts
the matter in evidence, it's proper to place that evidence in context during closing
28
argument. But the defense may choose to avoid it on retrial, so we have no reason to
believe the issue will arise again in closing argument.

As for sentencing, Langston argues that his sentence should have included only 24
months of postrelease supervision, not lifetime supervision. That issue obviously won't
arise again unless Langston is again convicted on retrial. Our court has rejected the
argument Langston is making in several cases. E.g., State v. Herrmann, 53 Kan. App. 2d
147, 153-54, 384 P.3d 1019 (2016), rev. denied 306 Kan. ___ (July 25, 2017); State v.
Phillips, No. 115,107, 2017 WL 1822383, at *1 (Kan. App. 2017) (unpublished opinion),
petition for review filed June 5, 2017; State v. Younkman, No. 115,606, 2017 WL
1035473, at *2-4 (Kan. App. (2017) (unpublished opinion), rev. denied 306 Kan. ___
(August 31, 2017). Since some of our rulings on this point remain under review and the
Kansas Supreme Court has not yet addressed the issue, we will address it in Langston's
case only if it arises again after his retrial.

The district court's judgment is reversed; this case is remanded for further
proceedings consistent with our opinion.