State v. Sanders

1

NOT DESIGNATED FOR PUBLICATION

No. 111,738

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PRESTON E. SANDERS,
Appellant.


MEMORANDUM OPINION

Appeal from Logan District Court; GLENN D. SCHIFFNER, judge. Opinion filed September 4,
2015. Affirmed in part and remanded with directions.

Michelle Davis and Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for
appellant.

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

Before GREEN, P.J., HILL, J., and TIMOTHY G. LAHEY, District Judge, assigned.

Per Curiam: Preston Sanders appeals his jury trial convictions of one count of
aggravated human trafficking, one count of transporting an open container, one count of
furnishing alcohol to a minor, and one count of driving while suspended. On appeal,
Sanders argues that he should have been charged with promoting prostitution rather than
aggravated human trafficking, that the State presented insufficient evidence, that the trial
court should have instructed the jury on the word "used," and that the trial court imposed
an illegal sentence. We affirm Sanders' convictions but remand for resentencing.

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On December 30, 2011, Officer Douglas Reed stopped Preston Sanders' car for
speeding. Officer Reed discovered that Sanders' license was suspended so he arrested
him. A young woman was also in the car with Sanders. While speaking with the young
woman, Officer Terry Grace noticed that the young woman smelled of alcohol. Officer
Grace then learned that the young woman's name was A.M.M. and that she was not quite
18 years old. Officer Grace then gave A.M.M. a breath alcohol test which showed
A.M.M.'s blood alcohol level at .30. Officer Grace then took A.M.M. into police
protective custody.

After finding an open bottle of tequila in Sanders' car Officer Reed cited Sanders
for transporting an open container in addition to furnishing alcohol to a minor. Officer
Reed also discovered that Sanders had an outstanding warrant in Minnesota.

It was later determined that Sanders' warrant was for a probation violation matter.
On December 16, 2011, while Sanders was on probation in Minnesota, Sanders was
arrested in Iowa and Iowa issued a warrant for him based on his felony charge of
pimping. The Iowa case involved a prostitution sting where Officer Warren Steinkamp,
an Iowa police officer, arrested both A.M.M. (who was using the working name of
Tiffany Champagne) and Sanders.

After investigating Sanders' case, the State of Kansas eventually charged Sanders
with one count of aggravated human trafficking, a severity level 1 person felony; one
count of transporting an open container, an unclassified nonperson misdemeanor; one
count of furnishing alcohol to a minor, a class A person misdemeanor; and one count of
driving while suspended, a class B nonperson misdemeanor.

At trial, Sanders conceded to all of the traffic offenses and only contested the
charge of aggravated human trafficking. The jury convicted Sanders on all counts.
Sanders moved for a directed verdict arguing that the State failed to present sufficient
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evidence that Sanders knew A.M.M. would be used for the sexual gratification of
another. The trial court denied Sanders' motion for a directed verdict.

At sentencing, the trial court granted a downward durational departure and
imposed a controlling 147 months in prison. The trial court also ordered Sanders to
register as a sex offender under KORA. Although the presentence investigation report
indicated that Sanders' postrelease term should be 36 months, the State argued that
Sanders should actually receive lifetime postrelease. The trial court ordered Sanders to
lifetime postrelease.

Is Promoting Prostitution the More Specific Offense Over Aggravated Human
Trafficking?

In his first issue on appeal, Sanders maintains that his conduct was prohibited by
both the more general aggravated human trafficking statute and the more specific
promoting prostitution statute. As a result, Sanders argues that the court can only enter a
conviction for promoting prostitution because it is the more specific offense.

The rule that a general statute should yield to a more specific statute covering the
same criminal conduct involves the examination of legislative intent to determine which
statute the legislature intended to be applied in each particular case. See State v. Williams,
299 Kan. 911, 930, 329 P.3d 400 (2014); State v. Cott, 288 Kan. 643, 645, 206 P.3d 514
(2009). "Interpretation of a statute is a question of law, and an appellate court's standard
of review of a lower court's statutory interpretation is unlimited." 288 Kan. at 645.
Because this rule hinges on legislative intent, it should not apply when "there is a clear
indication that the legislature did not intend for one statute to be the exclusive mechanism
for punishing a given activity." State v. Helms, 242 Kan. 511, 514, 748 P.2d 425 (1988).

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Although Sanders did not raise this argument before the trial court, our court has
jurisdiction to address it. In Williams, our Supreme Court held that this issue may be
raised for the first time on appeal because it involves only a question of law and that it
could be determinative of the case. 299 Kan. at 929.

In this case, Sanders argues that based on the facts of this case, promoting
prostitution is the more specific offense that should have been charged. Sanders
maintains that there is insufficient evidence to support the control and exploitation
element of aggravated human trafficking, and therefore, promoting prostitution should
apply instead.

Aggravated human trafficking is defined in K.S.A. 2011 Supp. 21-5426(b)(2) as
follows:

"(b) Aggravated human trafficking is:
. . . .
(2) recruiting, harboring, transporting, providing or obtaining, by any means, a
person under 18 years of age knowing that the person, with or without force, fraud, threat
or coercion, will be used to engage in forced labor, involuntary servitude or sexual
gratification of the defendant or another."

Promoting prostitution is defined in K.S.A. 2011 Supp. 21-6420 as follows:

"(a) Promoting prostitution is knowingly:
. . . .
(7) procuring transportation for, paying for the transportation of, or transporting a
person within this state with the intention of assisting or promoting that person's engaging
in prostitution."

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Last year, in Williams, our Supreme Court examined these two statutes to
determine whether promoting prostitution was the more specific offense. In Williams, the
defendant recruited and transported a 15-year-old girl from Kansas to Texas to be a
prostitute for him. Before leaving Kansas, the defendant refused to let the girl call her
roommate or pick up her belongings because he was afraid she would change her mind.
The defendant told the girl that she could not look at any other man, that she was to look
down, and that she should not speak unless she was spoken to or unless he gave her
permission to speak.

When they arrived in Texas, the girl performed oral sex on the defendant at his
request because she felt as if she had no choice in the matter. The defendant then sent the
girl out on the street with rates and a quota that she had to reach before she was allowed
to return to the hotel. The girl had to give almost all of her profits to the defendant and
she only ate when the defendant brought her food. The girl testified that she agreed to
work as a prostitute because she felt she did not have any other choice and that she knew
what she was getting herself into.

The Williams court held that the legislative intent is clear in that it did not intend
"to have promoting prostitution control over aggravated trafficking." 299 Kan. at 930.
Our Supreme Court determined that the legislature intended for the aggravated trafficking
statute to cover a wide range of activities because trafficking offenses are part of a larger
set of crimes. 299 Kan. at 931-32. The Williams court further determined that the
legislature intended the aggravated trafficking statute to apply in situations "in which a
minor's vulnerability is exploited through an abuse of power—i.e., where the minor is
'used.'" 299 Kan. at 923.

Thus, because the defendant in Williams exerted a high level of control over his
15-year-old victim and sexually exploited her vulnerability, the defendant's conduct was
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broader than the narrow scope of the promoting prostitution statute. Williams, 299 Kan. at
932.

Sanders attempts to distinguish his facts from the facts in Williams to show why
promoting prostitution should apply in his case. For example, Sanders maintains that he
did not exert as much control over A.M.M. as the defendant in Williams. Sanders also
points out that A.M.M. began prostituting herself out before she had even met Sanders.
Sanders further argues that A.M.M. was older than the victim in Williams, that she had
been legally emancipated, and that she was old enough to consent to sexual relationships
in Kansas. Sanders also makes note of the fact that A.M.M. recruited Sanders into her
escort business and that she continued to prostitute herself out even after Sanders was in
custody.

Nevertheless, Sanders ignores many facts which support charging him with
aggravated trafficking over promoting prostitution. The facts in this case show that, just
as in Williams, Sanders' conduct went beyond the behaviors targeted by the promoting
prostitution statute and fit better under the aggravated trafficking statute. For example,
the record shows that Sanders was the mastermind behind the escort business. Sanders
was the one who reserved the hotel rooms, purchased the cell phones, told A.M.M. where
to go and where not to go, and he also made a large amount of money from trafficking
A.M.M. Additionally, Sanders admitted to his probation officer that he had been in the
escort business since he was 16 years old and that he was addicted to that lifestyle
because of the fast money. Sanders also referred to a hotel room as his "office" and he
flaunted the cash that A.M.M. brought in.

Sanders' control over A.M.M. was extremely evident once he was in prison. Even
from prison, Sanders told A.M.M. what to do. Sanders controlled or directed A.M.M. on
how to handle the money and was constantly telling her not to spend any money. Also
from prison, Sanders told A.M.M. to put up her prostitution advertisements and told her
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how to do it. He encouraged her to work more and often told her that she had not worked
enough. Sanders also told A.M.M. to give his sister the money she was making, and
A.M.M. obeyed. Sanders then instructed his sister to not give A.M.M. any money if she
came and asked for some until she checked with Sanders first. He then told his sister that
he did not think she would do that because he knew how loyal A.M.M. was to him.
Sanders also threatened to kill A.M.M. multiple times in one of their phone conversations
while he was in prison. A.M.M. testified that she did not remember this comment and did
not take him seriously; however, Sanders said that he meant what he said during their
phone conversation.

Also, A.M.M.'s mother told Officer David Stokes that Sanders had been
prostituting A.M.M. since she was 15 years old and that A.M.M. was being threatened by
Sanders through his family while he was in prison.

Based on this evidence, it is clear that Sanders exercised a level of control over
A.M.M. that would not have been captured under a promoting prostitution charge. For
example, promoting prostitution only requires that the person be transported within the
State of Kansas. Here, Sanders had taken A.M.M. to Minnesota, Iowa, Illinois, and
Missouri, and they were on their way to California. Clearly Sanders was not merely
transporting A.M.M. within the State of Kansas for the sole purpose of A.M.M.
prostituting herself out. Thus, under the facts of this case, we conclude that promoting
prostitution was not the more specific offense and conclude that Sanders was properly
charged with aggravated trafficking.

Was There Sufficient Evidence to Convict Sanders of Aggravated Human Trafficking?

Next, Sanders argues that there was insufficient evidence to convict him of
aggravated human trafficking. Specifically, Sanders contends that there was insufficient
evidence that Sanders "used" A.M.M. as required by statute.
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When reviewing the sufficiency of the evidence in a criminal case, because the
jury has found the facts in the State's favor, we review the evidence in the light most
favorable to the State to determine whether a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. State v. McBroom, 299 Kan. 731, Syl. ¶ 5,
325 P.3d 1174 (2014). We do not reweigh evidence, resolve conflicts in the evidence, or
pass on the credibility of witnesses. 299 Kan. 731, Syl. ¶ 5. Nor do we make a distinction
between direct and circumstantial evidence in terms of probative value: "A conviction of
even the gravest offense can be based entirely on circumstantial evidence and the
inferences deducible therefrom. If an inference is a reasonable one, the jury has the right
to make the inference." 299 Kan. 731, Syl. ¶ 6.

Sanders challenges the sufficiency of the evidence for his conviction for
aggravated human trafficking, which is defined in K.S.A. 2011 Supp. 21-5426(b)(2) as
"recruiting, harboring, transporting, providing or obtaining, by any means, a person under
18 years of age knowing that the person, with or without force, fraud, threat or coercion,
will be used to engage in forced labor, involuntary servitude or sexual gratification of the
defendant or another." In this case, the jury was instructed that the State had to prove the
following elements:

"1. The defendant transported [A.M.M.] by any means.
"2. [A.M.M.] was less than 18 years old.
"3. The defendant knew that [A.M.M.], with or without force, threat or coercion,
would be used for sexual gratification of another.
"4. This act occurred on or about the 30th day of December, 2011, in Logan
County, Kansas."

Sanders asserts that the State failed to present sufficient evidence to prove that he
used A.M.M. because the State did not present evidence of Sanders' exploitation of
A.M.M.'s vulnerability through an abuse of power.

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To support his argument, Sanders points out that the Williams court held that the
term "used" in the aggravated trafficking statute indicates the statute is limited to
situations where a minor's vulnerability is exploited through an abuse of power. 299 Kan.
at 921-22. Sanders maintains that there is insufficient evidence that he exploited
A.M.M.'s vulnerability. In fact, Sanders urges the court to find that A.M.M. looked at
Sanders more as a "business partner or mentor rather than a controlling or exploitative
pimp." Sanders stresses the fact that when the offense occurred, A.M.M. was 2 months
from being 18 years old; that A.M.M. was legally emancipated in Minnesota; that
A.M.M. had previously been tried as an adult in Iowa; and that A.M.M. was old enough
to consent to sexual relationships in Kansas. Sanders argues that A.M.M. began
prostituting on her own so any involvement he might have had was secondary. Sanders
further contends that although A.M.M. had a tattoo of Sanders on her arm, which is often
a sign of branding, Sanders also had a tattoo of A.M.M. on his body. Thus, this should be
viewed as a genuine sign of affection rather than a sign of ownership or control.

While there are some facts that support Sanders' argument, there are also facts that
support the jury's finding that Sanders used A.M.M. for sexual gratification of another.
For example, Sanders reserved the hotel rooms that A.M.M. would use for prostitution;
Sanders purchased and provided A.M.M. with cell phones to use for her prostitution;
Sanders posted A.M.M.'s prostitution advertisements and encouraged A.M.M. to also
post these advertisements; A.M.M. had to have Sanders' permission to give clients extra
time or to charge extra money; and even from prison, Sanders was still telling A.M.M.
how much to work and where to work and encouraging her to give him the money she
had made. Sanders also admitted to his probation officer that he was addicted to the fast
cash that a person can make in the escort business and that he had been involved in that
business since he was 16 years old. Simply, Sanders used A.M.M. as a tool to make
money. Indeed, A.M.M. is how Sanders made a living. Sanders bragged about the large
amount of money he made in the escort business and even took pictures of himself with
large amounts of cash.
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Based on the evidence presented in the case, the jury found that Sanders used
A.M.M. in a way that exploited her vulnerability. Viewing the evidence in the light most
favorable to the State, as we are required to do, a reasonable jury could hold that Sanders
exploited A.M.M.'s vulnerability through an abuse of power. Sanders transported A.M.M.
when she was under the age of 18, knowing that she would be used for the sexual
gratification of another; thus, he was guilty of aggravated human trafficking.

Did the Trial Court Err in Failing to Define the Term "Used" for the Jury?

Next, Sanders argues that the trial court erred in failing to define the term "used"
in the aggravated human trafficking instruction. Sanders maintains that without a
definition of the term "used" the instruction failed to inform the jury of the limitations of
the statute. Sanders contends that if the court had defined the term "used," then there is a
real possibility that the jury would have reached a different verdict.

Under K.S.A. 22-3414(3), even when a defendant fails to object to or request an
instruction, we may examine the issue using the clearly erroneous standard of review.
The clearly erroneous standard of review employs a two-step process as provided in State
v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013):

"First, the appellate court must 'determine whether there was any error at all. To make
that determination, the appellate court must consider whether the subject instruction was
legally and factually appropriate, employing an unlimited review of the entire record.'
Williams, 295 Kan. 506, Syl. ¶ 4. If the court finds error, it moves to the second step and
'assesses whether it is firmly convinced that the jury would have reached a different
verdict had the instruction error not occurred. The party claiming a clearly erroneous
instruction maintains the burden to establish the degree of prejudice necessary for
reversal.' Williams, 295 Kan. 506, Syl. ¶ 5."

In this case the jury was instructed as follows:
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"1. The defendant transported [A.M.M.] by any means.
"2. [A.M.M.] was less than 18 years old.
"3. The defendant knew that [A.M.M.], with or without force, threat or coercion,
would be used for sexual gratification of another.
"4. This act occurred on or about the 30th day of December, 2011, in Logan
County, Kansas."

Sanders maintains that the jury should have been instructed that the term "used" meant
"exploited through an abuse of power."

It should be noted that the standard PIK instruction was used in this case.
Although the use of PIK instructions is not required, it is strongly recommended, as these
"'"instructions have been developed by a knowledgeable committee to bring accuracy,
clarity, and uniformity to jury instructions."' [Citation omitted.]" State v. Acevedo, 49
Kan. App. 2d 655, 663, 315 P.3d 261 (2013), rev. denied 300 Kan. 1104 (2014).

The term "used" is not statutorily defined, nor is a definition provided in the
Pattern Instructions for Kansas (PIK). See K.S.A. 2011 Supp. 21-5426(b)(2); PIK Crim.
54.450. Nevertheless, our Supreme Court discussed the definition of the term "used" as it
relates to this instruction in the Williams case. The Williams court noted that although the
statute does not give a specific definition for the term "used," the court held that "the
word's context makes its meaning clear, and its meaning limits the scope of K.S.A. 21-
3447(a)(2). Specifically, the phrase 'used to engage in forced labor, involuntary servitude
or sexual gratification' indicates the statute is limited to situations where a minor has been
exploited." 299 Kan. at 921. The Williams court cited Webster's II New College
Dictionary in defining "use" as follows: "'[t]o put to some purpose' and '[t]o exploit for
one's own advantage or gain.'" 299 Kan. at 921. The Williams court further found that the
jury could have inferred the victim was used by the defendant in a manner the legislature
determined should be punished as aggravated trafficking. 299 Kan. at 933.

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As in Williams, the jury could have inferred that A.M.M. was used by Sanders in a
way that the legislature determined should be punished as aggravated human trafficking.
For example, Sanders was clearly the one in charge. Sanders reserved the hotel rooms
that A.M.M. would use for prostitution; Sanders purchased and provided A.M.M. with
cell phones to use for her prostitution; Sanders posted A.M.M.'s prostitution
advertisements and encouraged A.M.M. to also post these advertisements; A.M.M. had to
have Sanders' permission to give clients extra time or to charge extra money; and even
from prison, Sanders was still telling A.M.M. how much to work and where to work and
encouraging her to give him the money she had made. Sanders clearly used A.M.M. as a
tool to make money.

The meaning of the word "used" in the statute and jury instruction is clear. The
word "used" is widely used and has a common meaning. Thus, there was no need for the
court to instruct the jury on the word "used." As a result, Sanders has failed to meet his
burden of proof to show clear error. Moreover, based on the facts in this case, the jury
could have inferred that A.M.M. was "used" by Sanders in a way that is punishable as
aggravated human trafficking.

Is Sanders' Sentence of Lifetime Postrelease Illegal?

Finally, Sanders argues that the trial court ordered an illegal sentence when it
imposed lifetime postrelease. Sanders maintains that his sentence does not conform to the
provisions in K.S.A. 2011 Supp. 22-3717, and therefore, the sentence should be vacated
and remanded.

"An illegal sentence under K.S.A. 22-3504(1) is a sentence imposed by a court
without jurisdiction; a sentence which does not conform to the statutory provision, either
in the character or the term of the punishment authorized; or a sentence which is
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ambiguous with respect to the time and manner in which it is to be served." State v.
Ballard, 289 Kan. 1000, Syl. ¶ 11, 218 P.3d 432 (2009).

An illegal sentence may be corrected at any time. K.S.A. 22-3504. Whether a sentence is
illegal within the meaning of K.S.A. 22-3504 is a question of law over which an appellate
court has unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).

The State concedes that Sanders should have been sentenced to 36 months
postrelease instead of lifetime postrelease and the State also requests that the sentence be
vacated and remanded for resentencing.

K.S.A. 2011 Supp. 22-3717(d)(1) states that a person sentenced for a crime
committed on or after July 1, 1993, subject to subparagraph (G), will be subject to
postrelease for 36 months, if sentenced for a severity level 1 felony. K.S.A. 2011 Supp.
22-3717(d)(1)(A).

K.S.A. 2011 Supp. 22-3717(d)(1)(G) states that persons convicted of a sexually
violent crime committed on or after July 1, 2006, must be released from prison to lifetime
postrelease. K.S.A. 2011 Supp. 22-3717(d)(2) sets forth the applicable sexually violent
crimes. Aggravated human trafficking was not added to the list of sexually violent crimes
until 2013. See K.S.A. 2013 Supp. 22-3717(d)(5)(K).

Sanders was convicted of a severity level 1 felony offense for a crime he
committed on December 30, 2011. Thus, he should have been sentenced to 36 months
postrelease instead of lifetime postrelease. As a result, we remand this case to the trial
court to resentence Sanders to 36 months' postrelease.

Affirmed in part and remanded for resentencing.