State v. Rodgers

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NOT DESIGNATED FOR PUBLICATION

No. 118,447

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHAUNA S. RODGERS,
Appellant.

MEMORANDUM OPINION


Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed February 22, 2019.
Affirmed in part, sentence vacated in part, and remanded for resentencing.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before STANDRIDGE, P.J., PIERRON and GREEN, JJ.

PER CURIAM: A jury convicted Shauna S. Rodgers of arson, battery, two counts of
interference with parental custody, and five counts of endangering a child. The district
court sentenced her to 56 months of incarceration followed by 12 months of postrelease
supervision. Rodgers appeals.

Rodgers was in a common-law marriage with Franklin Wright for six years. They
had two children together. In February 2016, they separated, Wright remained in the
family's home with the children, and Rodgers moved to the Topeka Rescue Mission
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(Mission). Wright described his relationship with Rodgers as "[v]ery rocky" and
described Rodgers' demeanor as "[v]ery angry and aggressive." In April 2016, Wright
filed for a temporary custody order. The district court granted joint custody of the
children; Wright had residential custody and Rodgers had supervised parenting time at
the Mission for two hours every Tuesday and Thursday and seven hours on Saturdays.

Initially, Wright did not enforce the parenting plan—the Mission had not
supervised the visitations, Rodgers had watched the children at Wright's house outside of
her scheduled visitation time, and she had taken the children to doctor's appointments.
Wright decided to enforce the parenting plan when a police officer advised him to after
he had to call police to remove Rodgers from his residence.

On the evening of July 29, 2016, Wright had to work overtime. His coworker,
Cassandra Lately, and her three children, went to Wright's house to babysit his children.
On his way to work, Wright spoke to Rodgers on the phone and told her he needed to
move her Saturday visit to Sunday. Rodgers became angry and verbally aggressive.

While Lately was cooking dinner Rodgers knocked on the door. Wright had
warned Lately not to open the door if Rodgers showed up. When Lately did not answer
the door, Rodgers returned to her vehicle and retrieved a gas can. She broke a window in
Lately's vehicle and poured gasoline inside and across the hood. Rodgers then retrieved a
white object from her vehicle and yelled, "Bitch, if you do not open up the door, I will
blow your shit up." She lit the white object on fire and threw it into Lately's vehicle,
engulfing it in flames.

Lately ran outside to try to save her vehicle, but Rodgers charged at her, punched
her in the face, and pulled her hair. Lately testified she and Rodgers "tussled on the
ground" while the children were inside the house. As they fought, Lately tried to calm
Rodgers and ask her to help save the vehicle. Rodgers grabbed the garden hose, but it was
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too late to save Lately's vehicle. Lately had parked her vehicle in the driveway, next to
the house. It was close enough that the fire damaged the house—the eaves caught on fire,
the porch pillars were severely burned, and the paint melted. Lately testified that Rodgers
"grabbed [her children], and she didn't grab them in a nice way, she just pulled them by
their arms and threw them in the car." Lately tried to stop Rodgers, but Rodgers charged
at her again. Lately let her go, as she felt it was a situation appropriately left to law
enforcement. Rodgers had not told Lately where she was going with the children.

Lately called Wright about that evening's events, and Wright immediately left
work. No one knew where Rodgers had gone with the children. Approximately two hours
later, law enforcement informed Wright the children were at the hospital with Rodgers.
She had taken the children to the Mission and then to the hospital because she had been
concerned for their health and well-being. At the hospital, Wright spoke with the doctor
who had examined the children. The doctor was "stumped of why [Rodgers] brought
them there" and had no concerns for the children's health.

The State charged Rodgers with aggravated arson, two counts of interference with
parental custody, five counts of aggravated endangering a child, and battery. Aggravated
arson and aggravated endangering a child are felony offenses, and battery is a
misdemeanor. Interference with parental custody can be either a felony or a
misdemeanor. After a four-day trial, the jury found Rodgers guilty of the lesser included
offense of arson, both counts of interference with parental custody, five counts of the
lesser included offense of endangering a child, and battery. The district court sentenced
Rodgers to 31 months in the Kansas Department of Corrections (KDOC) with 12 months
of postrelease supervision for arson and 7 months in KDOC for both interference with
parental custody charges, which it sentenced as felonies. The court ran the two counts of
interference with parental custody concurrent with each other but consecutive to the arson
charge. The court sentenced her to 12 months in the county jail for each of the
convictions for endangering a child, with each sentence running concurrent with each
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other but consecutive to the felony sentences. It also sentenced her to 6 months in the
county jail for battery, to run consecutive to all other charges. In total, the court sentenced
Rodgers to 38 months in KDOC, 18 months in jail, and 12 months of postrelease
supervision.

Felony Interference with Parental Custody

Rodgers contends the State failed to prove that she was not entitled to joint
custody of her children, a statutory element of felony interference with parental custody
under K.S.A. 2017 Supp. 21-5409. As a result, she claims the district court erred by
entering the convictions as felonies.

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

"Interference with parental custody is taking or enticing away any child under the
age of 16 years with the intent to detain or conceal such child from the child's parent,
guardian or other person having the lawful charge of such child." K.S.A. 2017 Supp. 21-
5409(a). Rodgers does not challenge the sufficiency of the evidence for any elements of
interference with parental custody. Whether the offending parent has joint custody of the
child is not an element of the offense. Joint custody is under the classification subsection
of the statute. Under K.S.A. 2017 Supp. 21-5409,

"(c)(1) Interference with parental custody is a:
(A) Severity level 10, person felony, except as provided in subsection (c)(1)(B); and
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(B) class A person misdemeanor, if the defendant is a parent entitled to joint
custody of the child either on the basis of a court order or by virtue of the absence of a
court order."

Joint custody is in the classification subsection for sentencing purposes rather than
the subsection outlining the elements of the offense. Rodgers is not challenging the
sufficiency of the evidence for an element of the offense. The evidence was sufficient for
a finding of guilt beyond a reasonable doubt.

Rodgers also contends the issue is that the district court erroneously omitted the
element of joint custody from the jury instructions. She asks us to apply the clear error
standard of review because of her failure to object to the jury instructions at trial.
However, rather than pursuing the issue as a jury instruction error, she goes on to assert a
constitutional violation. She claims the district court violated her rights to trial by jury
and due process under the Sixth and Fourteenth Amendments of the United States
Constitution by not presenting the issue of whether Rodgers had joint custody of the
children to the jury. The district court provided the jurors only with the elements of the
offense under subsection (a) of the statute.

The elements for felony interference of parental custody are the same as
misdemeanor interference with parental custody. Rodgers asserts that although the State
charged her offenses as felonies, the wording alleged the misdemeanor offense. The court
never instructed the jurors to determine whether Rodgers had joint custody of the
children. By accepting the verdict of guilty as charged, the court essentially conducted
the fact-finding that the jury should have conducted.

Statutory interpretation is a question of law over which we conduct unlimited
review. State v. McReynolds, 288 Kan. 318, 331, 202 P.3d 658 (2009).

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Although Rodgers did not object at trial, the Kansas Supreme Court has
determined that appellate courts may consider Apprendi issues for the first time on
appeal. State v. Anthony, 273 Kan. 726, 727, 45 P.3d 852 (2002).

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), the United States Supreme Court held: "Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt." "The policy
rationale behind Apprendi is that a court violates the United States Constitution if it
invades the jury's territory by finding facts at sentencing." State v. Dickey, 301 Kan.
1018, 1036, 350 P.3d 1054 (2015).

Apprendi does not apply. The district court made no additional findings of fact at
sentencing. The Apprendi Court aimed toward preventing state legislatures from
"'remov[ing] from the jury the assessment of facts that increase the prescribed range of
penalties to which a criminal defendant is exposed.'" 530 U.S. at 490. Ultimately, "the
essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a
finding of fact alters the legally prescribed punishment so as to aggravate it, the fact
necessarily forms a constituent part of a new offense and must be submitted to the jury."
Alleyne v. United States, 570 U.S. 99, 114-15, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).
While the felony offense of interfering with parental custody has a greater punishment,
whether a defendant is a parent entitled to joint custody is not an element of the crime or
a new offense. Custody is a sentencing issue under K.S.A. 2017 Supp. 21-5409(c)(1).
Therefore, the district court did not violate Rodgers' constitutional rights by not
submitting the question to the jury.

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Correcting an Illegal Sentence Sua Sponte

Whether a sentence is illegal under K.S.A. 2017 Supp. 22-3504 is a question of
law over which the appellate court has unlimited review. State v. Lee, 304 Kan. 416, 417,
372 P.3d 415 (2016). "A sentence is illegal under K.S.A. 22-3504 when: (1) it is imposed
by a court without jurisdiction; (2) it does not conform to the applicable statutory
provisions, either in character or punishment; or (3) it is ambiguous with respect to the
time and manner in which it is to be served. [Citation omitted.]" State v. Hayes, 307 Kan.
537, 538, 411 P.3d 1225 (2018). We may correct an illegal sentence sua sponte. State v.
Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013) (citing State v. Gilliland, 294 Kan. 519,
552, 276 P.3d 165 [2012]).

Under K.S.A. 2017 Supp. 21-5409(c)(1)(B), interference with parental custody is
a "class A person misdemeanor, if the defendant is a parent entitled to joint custody of the
child either on the basis of a court order or by virtue of the absence of a court order." If
the defendant is not a parent entitled to joint custody, the offense is a severity level 10
person felony.

At trial, the State submitted the temporary parenting plan for Wright and Rodgers.
The district court had granted them joint custody of the children. Wright testified he went
to court to obtain a temporary custody order, stating "[i]t was still 50/50 custody." In
closing arguments, the State noted, "there was a custody order in place, it was Friday, it
was not the defendant's day." The State has not contested that Rodgers had joint custody
of the children, only that it was not her day to have visitation with them.

The evidence shows Rodgers was entitled to joint custody of the children based on
a court order. The district court improperly sentenced Rodgers under K.S.A. 2017 Supp.
21-5409(c)(1)(A), as a felony offense, instead of under subsection (c)(1)(B), as a
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misdemeanor offense. We must vacate the sentence and remand for resentencing to a
misdemeanor charge of interference with parental custody.

Misstatement of Law

Rodgers contends the State misstated the law in closing arguments. She asserts
that interference with parental custody is a specific intent offense and the State lowered
its burden of proving her intent to detain or conceal the children from Wright by claiming
that the issue was whether she could legally take the children at that time.

Under State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016), the appellate
court uses a two-step process to evaluate claims of prosecutorial error:

"These two steps can and should be simply described as error and prejudice. To
determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). We continue
to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but
when 'analyzing both constitutional and nonconstitutional error, an appellate court need
only address the higher standard of constitutional error.' [Citation omitted.]"

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Even if the State's actions were egregious, reversal of a criminal conviction is not an
appropriate sanction if the actions are determined to satisfy the constitutional
harmlessness test. See Sherman, 305 Kan. at 114.

In closing arguments the State contended:

"Interference with parental custody, there was a custody order in place, it was
Friday, it was not the defendant's day. You can look at State's Exhibit Number 1 when
you are deliberating. And the evidence shows the defendant took [the children] with the
apparent attempt to conceal or detain the children from the father.
"The fact that she's the mother does not give her a defense. The fact that the
children were found a few hours later is not a defense. The issue here is, she took the
children, she was not legally allowed to take the kids at that point in time." (Emphasis
added.)

The elements of interference with parental custody, as provided in PIK Crim. 4th 54.230
(2016 Supp.), are (1) the child was under age 16; (2) the defendant took or enticed the
child away; (3) the defendant did so with the intent to detain or conceal the child from the
parent, guardian, or person having lawful charge of the child; and (4) when and where the
offense occurred. See K.S.A. 2017 Supp. 21-5409(a).

The State did not seek to replace the "intent to detain or conceal" with the
assertion that Rodgers could not have legally taken the children at that point. Reviewing
the State's entire closing argument, it is apparent that the State tried to explain these
offenses in as little time as possible as the bulk of its arguments focused on trying to
convince the jury that the arson and endangering a child charges should have been
aggravated offenses. As a result, the State did not review interference with parental
custody element by element. Instead, it combined its entire argument for the offenses in
the above two paragraphs, providing a broad argument for a guilty conviction.

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The second and third elements require proof that the defendant took the children
with the intent to detain or conceal them from the parent having lawful charge of them.
By stating that it was not Rodgers' day to have the children and the evidence showed the
requisite intent, the State showed its focus was on proving that Rodgers did not have
lawful charge of the children when she took them. The State did not seek to equate her
taking the children in violation of the parenting plan with the intent to detain or conceal.
Under K.S.A. 2017 Supp. 21-5409, the taking of the children must have been committed
when Rodgers did not lawfully have charge over the children, which the State accurately
presented to the jury. The State's failure to focus on the element of intent is not a
misstatement of the law; it is merely an element the State, for whatever reason, saw no
need to expand on beyond mentioning that the evidence proved it. Therefore, no
prosecutorial error occurred and we need not analyze prejudice.

Adequate Statutory Notice of Criminal Conduct

Rodgers claims K.S.A. 2017 Supp. 21-5409 is unconstitutionally vague because it
failed to give fair warning as to what conduct is criminal. She contends that the State
prosecuted her on the theory that her taking physical custody of the children was
sufficient to show intent to detain or conceal. She further asserts that the State's ability to
prosecute under that theory proved that the statute failed to provide an objective standard
for enforcement.

"Whether a statute is constitutional is a question of law subject to unlimited
review. [Citation omitted.] This court presumes that statutes are constitutional and
resolves all doubts in favor of passing constitutional muster." State v. Bollinger, 302 Kan.
309, 318, 352 P.3d 1003 (2015). This court must find the statute constitutionally valid if
there is any reasonable way to construe it as such. 302 Kan. at 318. The test for
constitutional vagueness consists of two inquiries: (1) whether the statute provides "a
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person of ordinary intelligence" fair warning as to the proscribed conduct and (2) whether
it protects against arbitrary and unreasonable enforcement. 302 Kan. at 318.

Rodgers failed to raise this issue before the district court. She contends that
although we generally cannot review a constitutional issue raised for the first time on
appeal, the vagueness argument fits into two exceptions to the general rule. Rodgers
asserts this is an issue of law arising from proved or admitted facts that is determinative
of the case and consideration is necessary to prevent denial of a fundamental right. This
court has permitted review of constitutional vagueness under those exceptions. State v.
White, 53 Kan. App. 2d 44, 55, 384 P.3d 13 (2016).

Rodgers contends the statute is constitutionally invalid under both inquiries of the
test. She first claims the statute was unconstitutional as it applied to her. She asserts the
statute did not provide her fair warning as to the proscribed behavior because it permitted
the State to prosecute her under the theory that her taking the children was sufficient to
show intent to detain or conceal. However, her characterization of the State's theory of
"intent to detain or conceal" is inaccurate.

As noted above, even though the State argued the issue was that Rodgers took the
children in violation of the parenting plan, it did not intend that argument to replace the
intent element. Before making that statement, the State said it was not Rodgers' day to
have the children and the evidence shows she took them with the intent to detain or
conceal them from Wright. This intent was evidenced in Wright's testimony that he did
not know where Rodgers had gone with the children and, when he arrived home, the
officers did not know where the children were either. Wright further testified that he only
got the kids back approximately two hours later when the officers said he could pick
them up at the hospital. He had been unaware that Rodgers had taken the children to the
Mission and the hospital. Because direct evidence of a defendant's state of mind is so
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rarely available, the State may use circumstantial evidence to provide intent. State v.
Thach, 305 Kan. 72, 83-84, 378 P.3d 522 (2016).

The State's mere reference to the evidence in closing does not change the theory of
prosecution to an impermissible one. The State's assertion that Rodgers illegally took the
children supported the statutory requirements that the defendant take the children and not
have lawful charge of them. Because Rodgers based her claim on her misunderstanding
of the State's theory of prosecution, the claim fails to show that the statute is
unconstitutionally vague as applied.

Rodgers' based her assertion that the unconstitutional vagueness provides for
arbitrary and discriminatory enforcement on the same erroneous interpretation of the
State's theory of prosecution. Therefore, her claim fails on both points. K.S.A. 2017
Supp. 21-5409 is not unconstitutionally vague as applied to Rodgers.

Affirmed in part, sentence vacated in part, and remanded for resentencing to a
legal sentence based on misdemeanor interference with parental custody.