State v. Peterman

1

NOT DESIGNATED FOR PUBLICATION

No. 111,159

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DOUGLAS PETERMAN,
Appellant.


MEMORANDUM OPINION

Appeal from Hodgeman District Court; BRUCE T. GATTERMAN, judge. Opinion filed December
11, 2015. Affirmed in part and vacated in part.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant, and Douglas D. Peterman,
appellant pro se.

Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.

Before MALONE, C.J., BRUNS, J., and ROBERT W. FAIRCHILD, District Judge, assigned.

Per Curiam: Douglas Peterman appeals his convictions and sentences for three
counts of aggravated indecent liberties with a child. Among other things, Peterman
argues on appeal that (1) the district court improperly limited cross-examination by
excluding relevant evidence under the rape shield statute; (2) the district court erred in
admitting K.S.A. 2011 Supp. 60-455 evidence; (3) the prosecutor committed misconduct;
(4) the district judge committed misconduct; and (5) the district court erred in imposing
lifetime electronic monitoring. The State stipulates that the district court was not
authorized to impose lifetime electronic monitoring upon a defendant convicted of an off-
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grid sex crime when Peterman committed his crimes. We do not, however, find any of
Peterman's other arguments to be persuasive. Thus, we affirm in part and vacate in part.

FACTS

F.W. and her sisters were removed by the State from her family home in April
2012. She was placed in foster care and began therapy with Sylvia DesLauriers the
following month. While speaking with DesLauriers, F.W. described a nightmare she was
having about Peterman. F.W. explained that Peterman was an adult family friend and
alleged that he had sexually abused her. Each time F.W. met with DesLauriers, she
provided additional information about the incidents of sexual abuse.

The first alleged incident of abuse occurred in October 2010, when F.W. was 10
years old. F.W. was alone with Peterman at his house, and after Peterman checked the
other bedrooms [to ensure that they were alone], he asked F.W. to come into his
bedroom. F.W. complied and sat on Peterman's bed. According to F.W., Peterman sat
down next to her and put his arm around her. He then proceeded to kiss F.W. on her lips,
on her face, and on her ear. In addition, Peterman rubbed his hands on F.W.'s arm while
kissing her.

About 1 month after the kissing incident, F.W and Peterman were lying together
on his bed. F.W. alleged that Peterman kissed her ears, cheeks, and lips while rubbing her
arms. Peterman then started licking F.W.'s pants on the area of her vagina. Following the
incident, F.W. noticed her pants were wet where the licking took place.

The third incidence took place a few days before F.W. went into foster care in
2012. F.W. and Peterman were in his bedroom again. Peterman told F.W. that he loved
her and then started kissing her cheeks and ears. Peterman again licked F.W.'s pants on
the area of her vagina so that her pants became wet.
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Ultimately, the State charged Peterman with three counts of aggravated indecent
liberties with a child and the case proceeded to jury trial in October 2013. In addition to
testimony regarding the three alleged incidents, the State also elicited testimony about the
relationship between F.W. and Peterman. Specifically, F.W. testified that Peterman
repeatedly told her when he gave her gifts that she was his girlfriend and would ask her to
marry him.

F.W.'s sister, M.W., testified that she often observed Peterman doing this and that
she found it strange. Both F.W and M.W. testified that even though Peterman also bought
gifts for F.W.'s sisters, he never talked about marrying them. Moreover, the gifts he
bought F.W. were sometimes bigger or more expensive than those he gave to her sisters.

DesLauriers testified about conduct that is considered to be "grooming" by sexual
perpetrators to gain the trust of a victim and a victim's family. She testified that sexual
perpetrators might try to groom a child by spending time with them, buying them "special
gifts," or doing fun things with them.

In addition, F.W testified that while driving with Peterman he sometimes asked
her if she wanted to rest her head on his lap. On one occasion, M.W. took several videos
of F.W. with her head on Peterman's lap while he drove. The videos were admitted into
evidence over Peterman's objection.

Patricia Copeland—a patron who sat directly behind Peterman and F.W. during a
production of "My Fair Lady" in Dodge City—witnessed Peterman's interaction with
F.W. and found it disturbing. Copeland observed that Peterman sat next to F.W., kept his
arm around her for "hours," and both whispered into and kissed F.W.'s ear numerous
times. Copeland testified that Peterman and F.W. gave the appearance of being boyfriend
and girlfriend. In fact, she thought that their interaction to be so disturbing that she took
pictures and turned them into the police.
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Peterman testified in his own defense at trial. Although he admitted treating F.W.
"somewhat" differently than her sisters, Peterman claimed this was because she had
emotional issues and needed more attention. He also admitted to calling F.W. his
girlfriend but asserted he used the term as slang. In addition, Peterman admitted to
teasing F.W. about marrying him as part of a running joke to prevent her from marrying
her boyfriend. Peterman described his relationship with F.W. as a helpful family friend
and told the jury that the alleged incidents of sexual abuse never happened. He also
denied kissing F.W. on the ear during the play in Dodge City.

Following deliberations, the jury found Peterman guilty on all counts. On
November 7, 2013, the district court sentenced him under Jessica's Law—see K.S.A.
2011 Supp. 21-6627(a)(1)(C)—to concurrent mandatory hard-25 life sentences.
Thereafter, Peterman timely appealed.

ANALYSIS

Exclusion of Evidence under Rape Shield Statute

Peterman contends the district court erred in denying his request to admit evidence
of alleged sexual conduct between F.W. and a boyfriend, P.R., under the Kansas rape
shield statute. See K.S.A. 2011 Supp. 21-5502 (formerly K.S.A. 21-3525). Specifically,
he argues that he should have been able to introduce evidence of the alleged sexual
relationship because it was relevant to explain F.W.'s motive in making the accusations
against him. In particular, Peterman asserts that F.W. was mad at him for attempting to
stop her from having sex because she was too young. We review a district court's
decision to exclude evidence under the rape shield statute for an abuse of discretion. See
State v. Holman, 295 Kan. 116, 140, 284 P.3d 251 (2012). A district court abuses its
discretion when its decision is (1) arbitrary, fanciful, or unreasonable, (2) based on an
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error of law, or (3) founded on an error of fact. State v. Waller, 299 Kan. 707, 722, 328
P.3d 1111 (2014).

Prior to trial, Peterman filed a "MOTION FOR INTRODUCTION OF PRIOR
SEXUAL CONDUCT BY VICTIM" under K.S.A. 2012 Supp. 21-5502. The motion
stated, in part, that Kansas Department of Children and Families records reviewed by
both counsels "indicate that [F.W.] was involved in a sexual relationship with P.R. at the
time of the allegations against [Peterman]." The motion contended that Peterman's
attempt to end the sexual relationship between F.W. and P.R. prompted F.W. to lodge the
current allegations. The motion also stated that the district court "must rule upon the
proffered evidence of prior sexual conduct by the complaining witness only after the
defendant files a written motion seeking the admission."

The State maintains that Peterman's motion failed to comply with the offer of
proof requirements of the rape shield statute that a movant must follow to overcome the
general exclusion of any purported evidence of prior sexual conduct.

The rape shield statute generally prevents the admission of "evidence of the
complaining witness' previous sexual conduct with any person including the defendant."
K.S.A. 2011 Supp. 21-5502(b). The statute expressly requires that defendants

"make a written motion to the court to admit evidence or testimony concerning the
previous sexual conduct of the complaining witness. The motion shall be made at least
seven days before the commencement of the proceeding unless that requirement is
waived by the court. The motion shall state the nature of such evidence or testimony and
its relevancy and shall be accompanied by an affidavit in which an offer of proof of the
previous sexual conduct of the complaining witness is stated." K.S.A. 2011 Supp. 21-
5502(b).

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In ruling that the rape shield statute prohibited any evidence relating to the alleged
sexual relationship between F.W. and P.R., the district court based its decision in part on
its finding that "[t]he court has nothing before it to confirm whether or not any sexual
activity occurred between [P.R.] and [F.W.]." This finding is consistent with the clear
obligation set forth in K.S.A. 2011 Supp. 21-5502(b) that a defendant's motion "shall be
accompanied by an affidavit in which an offer of proof of the previous sexual conduct of
the complaining witness is stated." (Emphasis added.)

Here, Peterman admits that he did not submit the required affidavit to the district
court—and he has not provided one on appeal. Granted, a panel of this court has
recognized a limited circumstance in which the procedural requirements of the rape
shield statute must yield to a defendant's constitutional right to confront witnesses. See
State v. Barber, 13 Kan. App. 2d 224, 226, 766 P.2d 1288, rev. denied 244 Kan. 739
(1989). However, without an affidavit from Peterman specifically proffering evidence of
the alleged sexual conduct between F.W. and P.R., the district court could not properly
weigh its possible relevance and admissibility.

We find Peterman's failure to comply with the statutory procedure in the rape
shield statute to preclude the admission of the purported evidence he desired to introduce
at trial. See State v. Walker, 252 Kan. 117, 134-35, 843 P.2d 203 (1992) (absent waiver,
defendant's failure to comply with notice provision of rape shield statute precluded
admission of evidence of rape victim's past sexual activity); State v. Smith, 39 Kan. App.
2d 204, 214-15, 178 P.3d 672 (failure to comply with statute precludes the admission of
the evidence), rev. denied 286 Kan. 1185 (2008). Because Peterman failed to comply
with the procedural requirements of the K.S.A. 2011 Supp. 21-5502, we need not address
the merits of his argument.



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Admission of K.S.A. 2011 Supp. 60-455 Evidence

Peterman next contends that the district court erred in determining K.S.A. 2011
Supp. 60-455 did not apply to the evidence that F.W. had put her head in his lap while
driving. He argues the act could have been charged as a crime and was not relevant to
prove propensity or to support his behavior was grooming. On the other hand, the State
argues that the evidence in question was not a crime subject to the prohibitions found in
K.S.A. 2011 Supp. 60-455; that the evidence was relevant to establish the type of
relationship Peterman and F.W. shared; and—as such—was circumstantial evidence of
Peterman's intent.

When reviewing a district court's decision concerning the admission of evidence,
an appellate court first determines whether the evidence is relevant. All relevant evidence
is admissible unless statutorily prohibited. K.S.A. 60-407(f); State v. Riojas, 288 Kan.
379, 382, 204 P.3d 578 (2009). K.S.A. 60-401(b) defines relevant evidence as "evidence
having any tendency in reason to prove any material fact." This definition encompasses
two elements: a materiality element and a probative element. State v. Houston, 289 Kan.
252, 261-62, 213 P.3d 728 (2009). Standards of review for each element vary.

A fact is material if it "has a legitimate and effective bearing on the decision of the
case and is in dispute." State v. Stafford, 296 Kan. 25, 43, 290 P.3d 562 (2012). Review
for materiality is de novo. State v. Ultreras, 296 Kan. 828, 857, 295 P.3d 1020 (2013).
Evidence is probative if it has any tendency to prove the material fact. Stafford, 296 Kan.
at 43. An appellate court reviews the district court's assessment of the evidence's
probative value under an abuse of discretion standard. Ultreras, 296 Kan. at 857.
However, even if evidence is relevant, a district court has the discretion to exclude the
evidence where the court finds that the potential for producing undue prejudice outweighs
its probative value. See K.S.A. 60-445. An appellate court reviews any such
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determination for an abuse of discretion. State v. Lowrance, 298 Kan. 274, 291, 312 P.3d
328 (2013).

A court's consideration of the admissibility of evidence can also require
application of statutory rules controlling the admission and exclusion of certain types of
evidence. These statutory rules are applied as a matter of law or as an exercise of the
district court's discretion, depending on the applicable rule. See State v. Holman, 295
Kan. 116, Syl. ¶ 6, 284 P.3d 251 (2012). The standard of appellate review varies
accordingly.

Here, the applicable statutory rule, K.S.A. 2011 Supp. 60-455 provides that
evidence that a person committed a crime or a civil wrong on a specified occasion is
inadmissible to prove the person's disposition to commit crime as the basis for the
inference that the person committed another crime or civil wrong on another specified
occasion. However, this evidence is admissible only if it is relevant to prove a material
fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. K.S.A. 2011 Supp. 60-455(b). Whether the district court
properly admitted evidence pursuant to K.S.A. 2011 Supp. 60-455 is a matter of law that
this court reviews de novo. State v. Horton, 283 Kan. 44, 51, 151 P.3d 9 (2007).

At a pretrial hearing, the district court addressed the State's motion that sought, in
part, permission to produce a video recording by M.W. and supporting testimony that on
one occasion F.W. was lying down with her head on Peterman's leg as he was driving.
The State argued this evidence did not fall under K.S.A. 2011 Supp. 60-455 and was
relevant to show that Peterman treated F.W. as his girlfriend. Peterman argued that even
though the evidence with F.W. lying with her head in his lap showed "no activity. No
torrid activity alleged," the evidence should have been excluded because the State was
trying to prove propensity without having to use K.S.A. 2011 Supp. 60-455. The district
court ruled that the evidence was not subject to K.S.A. 2011 Supp. 60-455 and went to a
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question of fact relevant to show Peterman's intent. The district court found that because
the alleged relationship between Peterman and F.W was "subject to more than one
explanation," its probative value outweighed its prejudicial value.

Before reaching the threshold question of relevance, we first ascertain whether the
district court was obligated to apply the statutory rules controlling the admission and
exclusion of evidence under K.S.A. 2011 Supp. 60-455 or if it was limited to the ordinary
rules of evidence. Peterman contends that the jury could have considered evidence of
F.W. placing her head in his lap met the definition of lewd fondling or touching, which
was stated in State v. Ta, 296 Kan. 230, Syl. ¶ 5, 290 P.3d 652 (2012). Specifically,
Peterman claims that "[d]ue to the proximity to [his] genitals and the intimate nature of
the gesture, such an action could be considered licentious."

For support, Peterman cites to State v. Rowray, 18 Kan. App. 2d 772, 860 P.2d 40,
rev. denied 254 Kan. 1009 (1993). In Rowray, this court held that a victim's testimony
that defendant "forcefully pulled down her underwear" on one occasion and that
defendant "repeatedly grabbed and squeezed her upper thigh" on another occasion was
sufficient evidence of lewd fondling to support defendant's multiple convictions for
indecent liberties with a child. 18 Kan. App. 2d at 779. Peterman equates the act of
allowing F.W. to place her head on his lap with the actions of the defendant in Rowray
having repeatedly grabbed and squeezed the upper thigh of a child.

In Ta, the defendant argued at trial there was insufficient evidence that he had
committed a lewd touching to support his convictions of aggravated indecent liberties
with a child. The State presented evidence that the police had contacted the defendant
after receiving complaints that he had touched the faces, hair, arms, and legs of two
young girls. The defendant told the police "'he wanted to have sex with children'" and
was having trouble controlling his urges. 296 Kan. at 233. On appeal, the Kansas
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Supreme Court held that the defendant's actions—touching the children's faces, hair,
arms, and legs—were not lewd actions when considered independent of his intent.

Our Supreme Court summarized its holding as follows:

"If a defendant is charged with aggravated indecent liberties with a child in
violation of K.S.A. 21-3504(a)(3)(A) [see K.S.A. 2011 Supp. 21-5506(b)(3)(A)], which
requires the State to prove that the defendant committed a lewd fondling or touching with
the intent to arouse or satisfy sexual desires, the defendant's mental state should not be
used to define or determine whether the touching or fondling is lewd. Rather, whether a
touching or fondling is lewd should be determined by considering the common meaning
of the term 'lewd,' that is, whether a touching is sexually unchaste or licentious;
suggestive of or tending to moral looseness; inciting to sensual desire or imagination; or
indecent, obscene, or salacious. In considering if a touching meets this definition, a
factfinder should consider whether the touching tends to undermine the morals of a child
and is so clearly offensive as to outrage the moral senses of a reasonable person." 296
Kan. 230, Syl. ¶ 5.

Applying the common meaning of the term "lewd" to the facts here, Ta did not
require the district court to consider the evidence that F.W. had put her head in
Peterman's lap while driving fit the definition of "lewd touching" and was a prior crime
under K.S.A. 2011 Supp. 60-455. Not taking into account Ta's statements regarding his
subjective intent, our Supreme Court determined that the defendant's touching in Ta
could be interpreted as innocent. 296 Kan. at 242-43. Peterman makes a similar argument
in the present case.

In questioning F.W. about having her head on his lap while driving, Peterman had
F.W. clarify that her head was on his "upper thigh." Peterman then asked F.W. if
anything "inappropriate" or "sexual happened when you had your head there," and F.W.
responded, "No." During the cross-examination of F.W.'s sister, M.W., who was in the
vehicle and took the video of F.W. with her head in Peterman's lap, Peterman asked
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M.W. if what she observed seemed "pretty innocent, normal." M.W. responded, "Yes."
Moreover, in making this argument, Peterman did not include in the record the video
evidence taken by M.W. and does not cite to any portion of the record that would support
his claim regarding the licentious nature of the evidence. He, therefore, has failed in his
duty to designate a record sufficient to establish the claimed error. See State v. Goodson,
281 Kan. 913, 919, 135 P.3d 1116 (2006).

Having concluded that there is no basis for the district court to view the evidence
as K.S.A. 2011 Supp. 60-455 evidence, we turn to the question of relevance. In regards to
the evidence's materiality, the relationship between Peterman and F.W. was clearly an
issue at trial since both parties devoted testimony and argument to whether Peterman
treated F.W. as his girlfriend. The State properly introduced the evidence that F.W. had
her head in Peterman's lap while driving for the specific purposes of proving a material
fact in dispute and establishing intent.

The jury instruction regarding the evidence of the photographs at the Dodge City
play and the video recording of F.W.'s head in Peterman's lap while driving, to which
Peterman agreed, supports this conclusion. Instruction No. 11 stated: "This evidence may
be considered solely for the purpose of proving the relationship, if any, shared by Mr.
Peterman and [F.W.], and [Peterman's] intent." Moreover, the evidence was probative
because the conduct depicted in the video had some tendency to prove F.W. and
Peterman's relationship as boyfriend and girlfriend.

To be sure, evidence not falling under K.S.A. 2011 Supp. 60-455 that established
the day-to-day nature of a sexual perpetrator's relationship with his or her victim aside
from any alleged sexual abuse was certainly relevant to establish circumstantial evidence
of a perpetrator's intent. Accordingly, we conclude that the district court did not err in
admitting the evidence.

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Prosecutorial Misconduct

Through his attorney and his pro se brief, Peterman raises numerous claims of
prosecutorial misconduct. Specifically, Peterman's attorney takes issue with the
prosecutor urging the jury to consider the lack of evidence presented of F.W.'s motive to
fabricate the allegations in this case. Peterman, himself, adds to his attorney's argument
by claiming that the prosecutor committed misconduct on 12 occasions during opening
and closing statements as well as during witness questioning.

However, the three allegations of misconduct in Peterman's pro se brief directed at
the prosecutor's questions during the evidentiary portion of the trial are not properly
before this court because Peterman did not lodge a contemporaneous objection. See
K.S.A. 60-404. We review a claim of prosecutorial misconduct based on comments made
during voir dire, opening statements, or closing argument that are not evidence even
when the defendant did not raise a contemporaneous objection during trial. State v.
Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied 133 S. Ct. 529 (2012).
However, a complaining party must make a contemporaneous objection to all evidentiary
claims—including questions posed by a prosecutor and responses to those questions—to
preserve the issue for appellate review. State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268
(2012). We first review the prosecutorial misconduct claim raised by Peterman's attorney
before turning to his 11 remaining pro se issues.

Our review of an allegation of prosecutorial misconduct involving improper
comments to the jury requires a two-step analysis. First, we must determine whether the
prosecutor's comments were outside the wide latitude that prosecutors are allowed in
discussing the evidence. Second, if we find misconduct, we then determine whether the
improper comments constitute plain error; that is, whether the statements prejudiced the
jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan.
840, 850, 270 P.3d 1115 (2012).
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In the second step of the two-step analysis, the appellate court considers three
factors: "(1) whether the misconduct was gross and flagrant, (2) whether the misconduct
showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct
and overwhelming nature that the misconduct would likely have had little weight in the
minds of jurors." Raskie, 293 Kan. at 914. None of these three factors is individually
controlling. Before the third factor can override the first two factors, an appellate court
must be able to say that the harmlessness tests of both K.S.A. 2011 Supp. 60-261(refusal
to grant new trial is inconsistent with substantial justice) and Chapman v. California, 386
U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), have been met. State v. Inkelaar, 293
Kan. 414, 427, 264 P.3d 81 (2011).

Under the constitutional harmless error test, the party benefitting from any
prosecutorial misconduct must prove beyond a reasonable doubt that the error will not or
did not affect the outcome of the trial in light of the entire record. Under the statutory
harmless error standard, the court must determine "'if there is a reasonable probability the
misconduct affected the outcome of the trial.' [Citations omitted.]" State v. McCullough,
293 Kan. 990, 984, 270 P.3d 1142 (2012).

Finally, "'[w]hen a defendant claims that a prosecutor committed reversible
misconduct, the prejudicial nature of alleged errors is analyzed in the context of the trial
record as a whole.' [Citations omitted.]" State v. Huerta-Alvarez, 291 Kan. 247, 262, 243
P.3d 326 (2010).

Allegations of Prosecutorial Misconduct Raised by Peterman's Appellate Counsel

Through appellate counsel, Peterman complains about the following two
comments the prosecutor made during closing argument:

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1) "And what motive—if you want to talk about motive—what motive does this
twelve year old, now thirteen years old—ten during the first two events, eleven during the
second—or the last event. What motive does she have to make any of this up? You have
heard absolutely no evidence that she had any motive to make it up. None. Zero. Zip.
Nada."
2) "The Defendant—he had an opportunity—he testified. He had an opportunity
to tell you that she had motive to make this up. No. No motive whatsoever."

Peterman claims that the State should not be permitted to argue that there was no
evidence of motive presented to the jury when it had successfully moved the district court
to exclude evidence of prior sexual conduct of F.W. under the rape shield statute.
Peterman opines: "The State cannot be allowed to successfully move the Court to
exclude evidence at a pretrial hearing by claiming the evidence is irrelevant and then
argue to the jury at trial it should convict because of a lack of the very evidence it
previously argued was irrelevant."

As previously discussed, Peterman's failure to comply with the statutory procedure
in the rape shield statute precluded the admission of any such purported evidence of a
sexual relationship between F.W. and P.R. And contrary to Peterman's assertion, the State
did not prevent him from presenting evidence of F.W.'s motive for making these
allegations. The State's argument at the pretrial hearing illustrates why Peterman did not
need evidence of an alleged sexual relationship between F.W. and P.R., to admit evidence
about any motive F.W. may have had to make up the allegations. The State argued, "The
[S]tate is not attempting to block [Peterman] from raising the issue that [P.R.] and [F.W.]
were in a romantic relationship and [Peterman] wanted to break that up so therefore
[F.W.] might make these allegations." The State further pointed out:

"The defense can simply be made by didn't you—weren't you boyfriend/girlfriend?
Which she has said they were boyfriend/girlfriend. [Peterman] can say I didn't like the
15

fact that these two were dating. I didn't think they were old enough. And I attempt[ed] to
break them up. And she made these allegations against him."

The prosecutor's broad comments regarding motive, or lack thereof, did not
specifically reference the lack of any purported evidence of a sexual relationship between
F.W. and P.R. to support a motive. And when placed in context, the prosecutor's
comments properly noted the lack of any evidence establishing that F.W. had a motive to
fabricate the molestation allegations. The aforementioned comments were made
immediately before and after the prosecutor's comment, "If someone was going to make
something like this up, would it sound like I was there with my clothes on and he licked
my vagina until my pants were wet? Does that sound reasonable to you? That someone
would make that up with no motive?" The State has considerable latitude to comment on
the weakness of the defense. State v. Williams, 299 Kan. 911, 939, 329 P.3d 400 (2014).
We do not find the prosecutor's comments to have been outside the wide latitude allowed
in discussing evidence.

Allegations of Prosecutorial Misconduct Raised in Pro Se Supplemental Brief

We first consider whether a comment by the prosecutor made during his opening
statement, "Up until this afternoon . . . you have not heard any facts about this case. That
ends now," was error as it could "confuse the jury." Peterman argues that this statement
confused the jurors by causing them to believe that they were now hearing the truth.

In State v. Kleypas, 272 Kan. 894, Syl. ¶ 23, 40 P.3d 139 (2001), cert. denied 537
U.S. 834 (2002), overruled in part on other grounds by State v. Marsh, 278 Kan. 520,
102 P.3d 445 (2004), overruled on other ground by Kansas v. Marsh, 548 U.S. 163, 126
S. Ct. 2516, 165 L. Ed. 2d 429 (2006), the Kansas Supreme Court held,

"Opening statements by counsel in criminal prosecutions are not evidence. They
are given for the purposes of assisting the jury in understanding what each side expects
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its evidence at trial will establish and to advise the jury what questions will be presented
for its decision. Prosecuting and defense attorneys are permitted reasonable latitude in
stating to the jury the facts they propose to prove."

We find that this comment was an opening transition to explain the evidence the
State intended to prove and did not exceed the permissible latitude afforded to
prosecutors in opening statements.

Peterman next complains of four comments by the prosecutor during closing
argument, in which Peterman argues that the State improperly tried to shift the burden of
proof to the defendant by referencing the lack of evidence of the victim's ulterior motives.
It is improper for the State to attempt to shift the burden of proof to the defendant. State
v. Peppers, 294 Kan. 377, 397, 276 P.3d 148 (2012). However, the Kansas Supreme
Court in Williams pointed out that it has repeatedly held the State "does not shift the
burden of proof by pointing out a lack of evidence to support a defense." 299 Kan. at 940.
As such, we find that the prosecutor did not improperly shift the burden of proof with
these comments.

Next, Peterman argues that the prosecutor's comment that "[Peterman] even
indicated to you he identified that [F.W.] was the one who needed the most or had the
most emotional needs, was the neediest, wanted attention the most" mischaracterized the
evidence. A prosecutor must not argue facts not in evidence. However, a prosecutor is
given wide latitude to make fair comments on the evidence if the comments are confined
to the evidence and reasonable inferences drawn therefrom. State v. Tahah, 293 Kan. 267,
277, 262 P.3d 1045 (2011).

During his direct examination, Peterman agreed that it was fair to say F.W.
"needed more attention because she wasn't getting it elsewhere." Peterman also testified
that he had a "father/daughter type" relationship with F.W. and her sisters that was more
17

pronounced with F.W. because F.W. "was a little more needy in that respect." During
cross-examination, Peterman agreed with the prosecutor that he had "recognized early on
that [F.W.] needed a lot of attention." Peterman also testified that he had found out early
on that F.W. "had emotional issues." Because the challenged statement was a fair
comment on the evidence, there was no misconduct in the prosecutor's statement.

Last, Peterman complains that the prosecutor argued facts that were not in
evidence with the following comment:

"[F.W.] testified to you–I believe defense counsel says, are you mad about what
he did? She goes, yeah, I'm mad about what he did. And of course she was mad after his
behavior resulted in them getting removed from the house."

The State concedes that this statement was arguably not directly supported by
admitted evidence. Indeed, the evidence presented at trial established that F.W. and her
sibling were removed from their home due to a lack parental care and control, so the
statement argued facts not in evidence. When a prosecutor argues facts that are not in
evidence, appellate courts have consistently found that the first step of the prosecutorial
misconduct test is met. State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009). Thus, we
must proceed to step two of the analysis.

The dispositive question is whether the prosecutor's comment amounts to plain
error, i.e., whether the comment prejudiced the jury against the defendant and denied the
defendant a fair trial. See Burnett, 293 Kan. at 850. In the context of the whole trial
transcript, we believe that the first two factors—whether the misconduct was gross and
flagrant and whether the misconduct showed ill will on the prosecutor's part—weigh in
favor of the State. There is nothing in the transcript to indicate that the prosecutor
deliberately and repeatedly sought to exceed the bounds of propriety. Application of the
third factor—whether the evidence was of such a direct and overwhelming nature that the
18

misconduct would likely have had little weight in the minds of jurors—is similarly
straightforward. As mentioned, this inquiry may not override the first two factors unless
the harmless error tests of both K.S.A. 2011 Supp. 60-261 and Chapman have been met.

Any suggestion that this misconduct on the part of the State affected the outcome
of the trial is negated by the fact that Peterman himself made a similar statement to the
jury during his closing argument. While discussing F.W.'s motive, Peterman's trial
counsel stated, "Look at her situation in mid-2012. [F.W.'s] removed from her home in
April. Through [sic] many reasons for that. One of them is of course her alleged contact
with Doug Peterman." (Emphasis added.) In other words—while not invited error—
Peterman complains of statements that he also made to the jury. Moreover, the prosecutor
immediately followed up on his improper comment by clarifying "it was [Peterman's]
behavior that caused [F.W.] to be angry. Not some other thing that would cause her to
make it up."

F.W. clearly testified that Peterman sexually abused her on three occasions. Thus,
we cannot conclude that granting a new trial is consistent with substantial justice. See
Huerta-Alvarez, 291 Kan. at 263-64. Moreover, while the prosecutor's comment was
inappropriate, the outcome of the trial primarily rested on the jury's credibility
determination based on contradictory testimony, so it is unlikely in the context of a trial
as a whole that this single comment directed the jury's verdict.

Further, Peterman complains of six comments by the prosecutor during rebuttal.
First, Peterman argues that the prosecutor confused the jury about the burden of proof in
the following two comments:

(1) "Alternative hypothesis, possibly aliens came down and did this. It's
possible. I can't prove there's not aliens. I can't prove they didn't come
down and lick the vagina through clothing of a ten year old girl."
19

(2) "Is it reasonable to believe that aliens came down and did it? Of
course not. Just as it is not reasonable to believe the Defendant's version
of events."

The prosecutor's reference to "alternative hypothesis" was in rebuttal to defense
counsel's closing argument that the jury could organize the evidence to support a
"reasonable alternative hypothesis" to the allegations. Specifically, the prosecutor was
responding to defense counsel's example of a reasonable alternative hypothesis which had
centered on his wife's lost car keys and his 3-year-old daughter.

The Kansas Supreme Court in Williams clarified that a "'prosecutor's improper
comment or argument can be prejudicial, even if the misconduct was extemporaneous
and made under the stress of rebutting arguments made by defense counsel. The
extemporaneous, rebuttal nature of a prosecutor's argument is merely a factor to be
considered by an appellate court.' [Citation omitted.]" 299 Kan. at 938. In other words,
the fact that a prosecutor's response was made under the stress of rebutting defense
counsel's arguments, we still must still consider if the prosecutor's comments were
misconduct. See 299 Kan. at 938.

Citing State v. Longoria, 301 Kan. 489, 524, 343 P.3d 1128 (2015), the State
argues its reference to aliens was a permissible analogy for putting the believability of
Peterman's defense in context. Granted, a prosecutor may use rhetorical devices,
including analogies, as one tool to put the facts of a case into a meaningful context. 301
Kan. at 524. However, "[t]he prosecutor must restrict the use of any rhetorical device to
'sensible limits set by similarity and dissimilarity to the facts of a case.' [Citation
omitted.]" 301 Kan. at 524-25.

Peterman's contention that the jury was made to believe that it had to believe in
aliens to find him guilty is illogical. Instead, we are faced with a prosecutor using
20

sarcasm as rhetorical device, not an analogy, as the reference to aliens certainly has no
similarity to the facts of the case.

"Because the line between appropriate and inappropriate use of sarcasm is thin,
making it easy to cross, prosecutors should avoid repeated use of the technique in most
cases. And its occasional use can be 'no more than sarcastic hyperbole identifying what
the prosecutor believe[s] to be weakness in the defense explanation of events.' [Citation
omitted.] . . . Sarcasm, when appropriate, should be thoughtfully tailored to specific
arguments and evidence; sarcasm should not set the tone of the prosecutor's entire
argument or rebuttal." Longoria, 301 Kan. at 526.

In Longoria, the court considered whether the prosecutor's repeated ridicule of the
defense through sarcasm "by using the term 'seriously' and likening defense theories to
UFO's and aliens" was within the wide latitude allowed in discussing evidence. See 301
Kan. at 523-25. The court found that the prosecutor' comments were proper given that the
prosecutor did not comment on facts not in evidence in conveying the weakness of the
defense and had tied his sarcasm to the evidence. The court also noted that the jury had
been repeatedly told of the importance of deciding the case based on the facts and that the
attorneys' arguments were not evidence.

Here, the prosecutor's statements fall short of the ones in Longoria. The prosecutor
only made a fleeting sarcastic reference to aliens during rebuttal and did not rely upon the
sarcasm to distract the jury from the evidence or its charge. The prosecutor tied the
sarcastic comment directly to the question of whether the jury should believe Peterman's
version of events. Nor did the prosecutor use sarcasm to establish weaknesses in the
defense as the prosecutor after making the comment immediately transitioned into a
discussion of the evidence. The prosecutor remained within the wide latitude allowed in
discussing the evidence.

21

Next, Peterman argues that the hypothetical posed in the following rebuttal
improperly inflamed the passions of the jury:

"The fact is that he says, well is it possible a twelve year old or a ten year old
would make this up? I supposed it's possible. It doesn't mean it's reasonable. If a ten or
eleven year old was going to make this up, in your common experience, would that come
out as, I'm lying on the bed, he kisses me on the cheeks, the lips, the ears, then moves
down and kisses me on the vagina with my pants on until my pants are wet. Is that what
you would expect if it was made up? No, you'd expect, he grabbed [my] breast, he
grabbed my vagina, he put his penis in, he put his penis on me. (Emphasis added.)

Here, unlike with the sarcastic alien comments, the State properly used an analogy
similar enough to the sensible limits of the facts surrounding allegations of sexual abuse
to put in context the believability of Peterman's defense or closing argument that it is
possible that "children fabricate or make up things like this." See Longoria, 301 Kan. at
524-25. The prosecutor's comment could also be construed as asking the jury to assess
the credibility of the complaining witness—a key issue in the trial that the prosecutor is
afforded wide latitude in addressing. See State v. Huerta-Alvarez, 291 Kan. 247, 262, 243
P.3d 326 (2010).

Next, Peterman argues that the following rebuttal from the prosecutor both
inflamed the passions of the jury and improperly shifted the burden of proof by
admonishing the jury to believe F.W. was not confused:

"I got confused the other day. I had to drop my kids off at school. Guess what?
Instead of making a left turn I make a right turn. I didn't turn around and go [to] work and
say, hey, somebody licked me on the vagina with my clothes on. Confusion does not
relate to making up sexual abuse. You've heard no evidence of such action. It is absurd to
think she was confused so she must have just made this up. No. She had absolutely no
motive, no reason to make any of this up." (Emphasis added.)
22

The State correctly points out that this comment was in rebuttal to Peterman's closing in
which he suggested that F.W. made up the allegations because she was confused.
Peterman argued, "[F.W.] is confused. She doesn't know—her dad—her own dad tells her
if you say anything you could get it trouble. I mean, she's confused. She doesn't know
what's going on. She's confused at this point." We believe that the prosecutor's use of
analogies was a proper way to explain how the jury should view the evidence and assess
the witness' credibility. See Longoria, 301 Kan. at 524-25; Huerta-Alvarez, 291 Kan. at
262. Moreover, the prosecutor's comment "somebody licked me on the vagina" was a fair
comment on the evidence.

Peterman also faults the prosecutor for arguing:

"Sylvia DesLauriers, she didn't introduce [the] information. She wasn't even
talking to her about sexual abuse. What's she talking to [F.W.] about? General therapy.
The therapy that was provided because [F.W.] had to leave her parents' home. Ms.
DesLauriers tells you she was upset and scared. [DesLauriers] asked [F.W.] why she was
upset and scared and guess what came out? Exactly why she was upset and scared.
Because a grown forty year old man had licked her on the vagina with her clothes on."

Peterman argues that the prosecutor misled the jury by stating that F.W. was not
speaking with DesLauriers about sexual abuse when she mentioned Peterman. Peterman
asserts that F.W. was, in fact, speaking with Deslauriers about sexual abuse when she
mentioned her nightmare involving, albeit sexual abuse F.W. suffered from her uncle.

We believe that the prosecutor made a reasonable inference about the subject
matter of F.W. and DesLauriers' conversation based on F.W.'s testimony. F.W. testified
that before she disclosed the information about the nightmare and Peterman, DesLauriers
had asked her "if anything ever first happened to [her] with [her] uncle" before asking her
if "anything happened again with anybody." While the prosecutor's comment did not
reference DesLauriers as the source of the nature of the conversation prior to the
23

disclosure, DesLauriers nevertheless contradicted F.W.'s testimony when she testified
that F.W.'s disclosure about Peterman was not "in response to a question that even related
to sexual abuse." Moreover, both F.W. and DesLauriers testified that the purpose of the
therapy DesLauriers provided to F.W. was only related to the required therapy for foster
care. Accordingly, the prosecutor did not argue facts not in evidence and made a
reasonable inference based upon the evidence. See Tahah, 293 Kan. at 277.

Finally, Peterman argues that the prosecutor's comment, "In this world [it's]
criminal activity that requires you to find him guilty," was an improper statement
regarding the duty of the jury. Telling jurors that a defendant's conduct requires the jury
to find the defendant guilty can certainly be construed as a statement implying to the
jurors that their oath requires a guilty verdict, which is the type of comment that was
disapproved of in State v. Scott, 286 Kan. 54, 79, 183 P.3d 801 (2008).

"By telling jurors to honor their oath and return a verdict of guilty, the prosecutor
implied that to do otherwise would be a violation of duty. Such comments have been
found to be improper by a variety of courts. [Citations omitted] . . . [I]t generally is
improper for the state to argue that the jurors' oath obligates them to return a particular
verdict because such language poses a risk of diverting the jury from its duty of deciding
the case on the basis of the evidence and the applicable law.'" 286 Kan. at 79.

However, the prosecutor here did not specifically mention the juror's oath.
Moreover, when the prosecutor's comment is taken as a whole it does not suffer from the
same defect as the statement in Scott, 286 Kan. at 79. Unlike the present case, the
prosecutor in Scott made the questionable comments without any reference to the
evidence. Here, however, the prosecutors' comment was the final remark made during a
discussion of whether the evidence presented met the definition of lewd fondling set forth
in Instruction No. 8. And, the prosecutor argued during closing argument that the jury
should find Peterman guilty after it went back and examined all of the evidence. Hence,
24

we do not find the prosecutor's comment to be improper under the circumstances
presented.

Judicial Misconduct

In his pro se brief, Peterman also challenges two of the district court's rulings
overruling his objections to a question that the State posed to both F.W. and Copeland.
Peterman also takes issue with the State's cross-examination of him. Peterman did not
argue below and does not argue now that recusal was required. See State v. Sawyer, 297
Kan. 902, 905-06, 305 P.3d 608 (2013) (discussing the three substantive bases on which a
litigant may argue that a judge's recusal is required). Instead, Peterman makes the genial
statement that he did not receive a fair trial. An allegation of judicial misconduct is
reviewable on appeal despite the lack of a contemporaneous objection when the
defendant claims that his or her right to a fair trial was violated. State v. Kemble, 291
Kan. 109, 113, 238 P.3d 251 (2010).

Appellate courts have unlimited review over allegations of judicial misconduct.
Kemble, 291 Kan. at 113. Peterman, as the party alleging judicial misconduct, bears the
burden of showing his substantial rights were prejudiced. See State v. Hudgins, 301 Kan.
629, 637-38, 346 P.3d 1062 (2015). If a proper and reasonable construction of the alleged
judicial misconduct will render the conduct unobjectionable, it is not prejudicial. 301
Kan. at 638. The mere possibility of prejudice from a judge's remark is insufficient to
overturn a verdict. State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002).

First, Peterman takes issue with the district court overruling an "asked and
answered" objection when the State asked F.W., "Now, this first time that he licked your
lower private area. Where did—what room in his house did that occur?" Peterman,
without explaining why, claims that the district court's ruling was improper because four
questions earlier, the State asked F.W., "And where were you when that occurred?" F.W.
25

responded, "His bedroom." Peterman appears to be arguing the district should have ruled
that the State's subsequent question was cumulative. However, the transcript reflects that
the earlier question and response concerned the kissing incident in October 2010 rather
than the first incident during which Peterman licked F.W. Thus, the district court's ruling
on this objection was not improper.

Next, Peterman faults the judge for overruling his counsel's objection to
Copeland's response to the State's question about whether she was observing a
"father/daughter relationship or a boyfriend/girlfriend relationship." When asked this
question, Copeland responded, "It was more boyfriend/girlfriend. If there had not been a
divider or armrest—." At this point, Peterman's counsel objected, arguing that any answer
would be speculation. The district court overruled the objection. Copeland finished her
answer, stating, "If there had not been an armrest in between these two people there
would have been no division."

Peterman argues that Copeland's response "made it sound as if something heinous
was only prevented by an armrest in a public theater." However, Copeland's testimony
regarding the armrest is not speculative as it concerns her direct observations describing
how physically close Peterman and F.W. were situated throughout the play. This is
reflected in the exchange directly after her response when the State then asked Copeland,
"Okay. They were extremely close to one another throughout the play?" To which
Copeland responded, "Yes." Thus, the basis of Copeland's answer was more than a mere
opinion or conjecture and was based on her observations.

Lastly, Peterman argues that the district court improperly allowed the State to
unfairly badger him during cross-examination about whether he had asked F.W. to marry
him and to explain why Peterman viewed him asking F.W. to do so was a joke. The
prosecution is permitted to cross-examine defense witnesses as to relevant facts that the
witness discussed during direct examination. Other than appearing to resent having to
26

answer the State's questions, Peterman points to no specific questions posed by the State
that did not focus on facts brought out during direct examination. In summary, we can
find nothing in the record that amounted to the badgering of Peterman.

Imposition of Lifetime Electronic Monitoring

As indicated above, the State concedes that the district court did not have authority
to impose the lifetime electronic monitoring under K.S.A. 2012 Supp. 21-6604(r) in this
case. This is because Kansas statutes did not authorize a district court to impose lifetime
electronic monitoring at the time Peterman committed the crimes for which he was
convicted. Specifically, Peterman committed three off-grid aggravated indecent liberties
with a child sometime between August 2010 and April 2012. But K.S.A. 2012 Supp. 21-
6604(r) did not take effect until July 1, 2012. Thus, we vacate this portion of Peterman's
sentence.

Affirmed in part and vacated in part.