State v. Stenberg

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NOT DESIGNATED FOR PUBLICATION

No. 116,026

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN ROSS STENBERG,
Appellant.


MEMORANDUM OPINION

Appeal from Gray District Court; E. LEIGH HOOD, judge. Opinion filed October 6, 2017.
Affirmed in part and vacated in part.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Curtis E. Campbell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., STANDRIDGE, J., and WALKER, S.J.

PER CURIAM: John Ross Stenberg was convicted of one count of rape, two counts
of aggravated criminal sodomy, and one count of aggravated indecent liberties with a
child. On appeal, he argues that the district court erred by (1) denying the motion to
suppress oral and written statements he made to law enforcement, (2) failing to, on its
own accord, instruct the jury regarding the lesser included offense of attempted rape, and
(3) improperly sentencing him to lifetime postrelease supervision. For the reasons stated
below, we find no error in the district court's ruling on the motion to suppress or in the
instructions it provided to the jury. Because Stenberg was improperly sentenced to
lifetime postrelease supervision, however, we vacate that portion of Stenberg's sentence.
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FACTS

K.P. and A.P. are sisters. Their mother, Stacey, was married to Stenberg. K.P. and
A.P. lived with Stacey and Stenberg in Cimarron, Kansas, until January 2014, when the
Kansas Department for Children and Families (DCF) removed the girls from the house
and sought to have them adjudicated as children in need of care. DCF placed the girls in
the home of Stephanie Casanova, who was a licensed foster parent. At the time of
placement, K.P. had just turned five years old, and A.P. was three years old.

About four to five months after the girls were placed with Casanova, K.P.
spontaneously announced at the dinner table that Stenberg "put his pee-pee on my pee-
pee." Casanova reported K.P.'s statement by notifying the assigned social worker and
calling an abuse hotline.

About a week later, A.P. disclosed at the dinner table that Stenberg had put his
"pee-pee" in her mouth. K.P. and A.P. then talked with each other about what Stenberg
had done to them, including having them get in bed with him naked. Casanova again
reported the abuse, and an investigation into the allegations was initiated.

On May 16, 2014, Casanova took both girls to a Garden City police station for
forensic interviews. Bethanie Popejoy, Senior Special Agent for the Kansa Bureau of
Investigation assigned to the Child Victims Unit, interviewed the girls separately. The
purpose of the interviews was to provide the girls an opportunity and a safe place to talk
about the disclosures they already had made to Casanova. The interviews were video
recorded.

K.P. told Popejoy that Stenberg had "put his pee-pee in [her] pee-pee," terms that
Popejoy already had established referred to his penis and her vagina. K.P. acted out
Stenberg's movements on the floor using her body, showing Popejoy how Stenberg
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kneeled over her and thrusted his hips so that "his privates would touch her privates."
K.P. also role-played using anatomically realistic dolls representing her and Stenberg to
demonstrate what Popejoy described as the missionary intercourse position. Popejoy
testified that, based on K.P.'s testimony and descriptions, she believed it would have been
"nearly impossible" for Stenberg not to have penetrated K.P.'s outer vagina. K.P. told
Popejoy that Stenberg engaged in the conduct described more than once, but she was not
able to confirm how many times. K.P. said she was four years old when it happened.

Special Agent Popejoy then interviewed A.P., who reported that Stenberg had "put
his wee-wee in [her] mouth" and "put his wee-wee in [her] pee-pee." Popejoy had talked
about anatomical terms with A.P. and understood that "wee-wee" referred to Stenberg's
penis and "pee-pee" was A.P.'s vagina. A.P. also role-played Stenberg's actions with dolls
representing her and Stenberg. A.P. told Popejoy that Stenberg had put his penis in her
mouth "a lot of times," but she was not able to specify how many.

On May 19, 2014, Undersheriff Jeff Sharp interviewed Stenberg about the girls'
statements. At the end of the interview, which lasted almost two hours, Stenberg verbally
admitted he had rubbed his penis against K.P.'s vagina and put his penis in A.P.'s mouth
twice. Stenberg then signed a written confession, in which he admitted that he twice
"placed [his] soft penis against [A.P.'s] lips," that he "rubbed [his] soft penis against
[K.P.] when [he] awoke from sleeping with no clothes on," and that he "rubbed it against
her vagina."

The State charged Stenberg with one count of rape, two counts of aggravated
criminal sodomy, and one count of aggravated indecent liberties with a child. K.P. and
A.P. both testified at trial. The jury convicted Stenberg as charged. The district court
sentenced Stenberg to life in prison with no possibility of parole for 25 years on each of
the four counts, ordering counts 1 and 4 to run consecutive to counts 2 and 3.

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ANALYSIS

This is Stenberg's direct appeal. In it, he claims the district court erred by: (1)
denying his motion to suppress the oral and written statements he made to Undersheriff
Sharp during his interview, (2) failing, on its own accord, to provide the jury with an
instruction on the lesser included offense of attempted rape, and (3) improperly
sentencing him to lifetime postrelease supervision. We address each of Stenberg's claims
in turn.

1. Motion to suppress

In support of the motion to suppress the oral and written statements he made
during his custodial interview, Stenberg argued to the district court that the coercive
tactics used by Undersheriff Sharp in interrogating him necessarily rendered those
statements involuntary and inadmissible. After considering the video recording of the
interrogation, the testimony from Sharp and Stenberg, and arguments from counsel, the
district court determined that Stenberg's oral and written statements were voluntarily
made; thus, the court denied Stenberg's motion.

On appeal of a district court's decision on a motion to suppress, an appellate court
applies a dual standard of review:

"'An appellate court generally reviews a trial court's decision on a motion to
suppress using a bifurcated standard. The trial court's findings are first reviewed to
determine whether they are supported by substantial competent evidence. Appellate
courts do not reweigh the evidence, assess the credibility of the witnesses, or resolve
conflicting evidence. The ultimate legal conclusion regarding the suppression of evidence
is then reviewed de novo. . . . [Citations omitted.]'" State v. Patterson, 304 Kan. 272, 274,
371 P.3d 893 (2016).

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When a defendant challenges his or her statement to a law enforcement officer as
involuntary, the State must prove the voluntariness of the statement by a preponderance
of the evidence. State v. Brown, 305 Kan. 674, 683-84, 387 P.3d 835 (2017). The
essential inquiry in determining whether a statement is voluntary is "whether the
statement was the product of the free and independent will of the accused." State v.
Walker, 283 Kan. 587, 596, 153 P.3d 1257 (2007). To make such an inquiry, the district
court looks at the totality of the circumstances surrounding the statement and considers
the following factors:

"(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3)
the ability of the accused to communicate on request with the outside world; (4) the
accused's age, intellect, and background; (5) the fairness of the officers in conducting the
interrogation; and (6) the accused's fluency with the English language." Walker, 283 Kan.
at 596-97.

Although he acknowledges courts are required to look at the totality of the
circumstances by using the five factors set forth above, Stenberg focuses solely on one of
the five factors: the fairness of Undersheriff Sharp in conducting the interrogation.
Stenberg claims his confession was involuntary because Sharp misrepresented facts,
misrepresented the law, and made implicit threats and inappropriate promises.

a. Misrepresenting facts

Stenberg argues that Undersheriff Sharp factually misrepresented (a) A.P.'s
allegations against him and (b) other law enforcement personnel's opinion regarding the
strength of A.P.'s and K.P.'s interviews. After watching the video of the interrogation and
hearing other evidence, the district court concluded that "[n]owhere in this interview do I
see that Undersheriff Sharp lied to the Defendant, misrepresented any of the facts that he
had available to him based on his conversation, his own investigation, or his conversation
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with other officers who were involved in this investigation." Based on our independent
review of the record, we find substantial competent evidence supports the court's holding.

False statements about the evidence do not, on their own, render a defendant's
confession involuntary. See, e.g., State v. Randolph, 297 Kan. 320, 333-34, 301 P.3d 300
(2013) ("Even if we consider [the detective's] statements—or the implication of them—to
have been knowingly false, this court has repeatedly declined to find it to be an inherently
impermissible interrogation technique for a law enforcement officer to make a false claim
that there was evidence implicating a suspect in a crime."); State v. Morton, 286 Kan.
632, 652, 186 P.3d 785 (2008); State v. Wakefield, 267 Kan. 116, 128, 977 P.2d 941
(1999). Instead, false statements must be viewed in conjunction with the totality of the
circumstances surrounding the confession to determine whether it was voluntarily made.
Morton, 286 Kan. at 652.

With regard to specific instances of false facts told to him, Stenberg claims
Undersheriff Sharp told him A.P. alleged Stenberg put his penis into her vagina, when in
fact A.P. only claimed that Stenberg put his penis into her mouth. But the evidence shows
that during her interview with Special Agent Popejoy, A.P. repeatedly stated that
Stenberg had put his "wee-wee" in her "pee-pee," which Popejoy previously had
established was A.P.'s terminology to describe Stenberg putting his penis in her vagina.
Sharp reviewed the video evidence, which would have included A.P.'s statement, prior to
interrogating Stenberg. Thus, there is substantial competent evidence in the record to
support the district court's finding that Sharp's statement did not misrepresent any facts
regarding A.P.'s allegations.

In another instance, Stenberg argues Undersheriff Sharp falsely represented to
Stenberg that other law enforcement personnel in the department believed the videos
were the best interviews they have had with a four-year-old child and five-year-old child,
graphic, and "pretty good evidence." Stenberg contends that Special Agent Popejoy
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testified differently at trial by saying that the interviews were "not necessarily" some of
the best she had ever seen. Stenberg also contends that the interviews were not in fact
graphic.

Stenberg did not make this particular false representation argument to the district
court. In fact, defense counsel stated during the motion hearing:

"To me, [the videos] didn't look particularly special, but I believe Undersheriff Sharp
when he says: Based on what I saw and based on what I was told, these were really great
pieces of evidence for the State. So we're not really . . . alleging any sort of deception
with regard to the evidence."

Issues not raised below are not properly before this court on appeal. See State v.
Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). And even if the issue was properly raised
on appeal, the record reflects that Undersheriff Sharp represented to Stenberg that several
other officers told him the videos were good evidence. But Stenberg cites only to Special
Agent Popejoy's testimony at trial in which she stated her belief the interviews were "not
necessarily" some of the best she personally had ever seen. This testimony on its own
does not establish that Sharp's representation about the opinion of other officers false.
Moreover, the question of whether the videos were considered good evidence or graphic
to other officers is more appropriately seen as an opinion than a fact.

We find substantial competent evidence supports the district court's finding that
Undersheriff Sharp did not misrepresent facts conveyed to Stenberg in the interview.

b. Misrepresenting the law

Stenberg next argues that Undersheriff Sharp misrepresented the legal seriousness
of the allegations against him. Both A.P. and K.P. alleged that Stenberg's penis was "soft"
during the incidents. Stenberg contends that Sharp repeatedly and improperly suggested
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throughout the course of the interview that there was some sort of legal distinction
between rape with an erect penis and rape with a soft penis. Stenberg maintains that these
improper suggestions of a legal distinction between rape with an erect penis and rape
with a soft penis coerced him into confessing to sexually abusing the girls with a soft
penis, which he believed would be seen as a less serious crime. After watching the video
of the interrogation and hearing other evidence, the district court found Undersheriff
Sharp did not suggest to Stenberg that there was some sort of legal distinction between
rape with an erect penis and rape with a soft penis.

"While telling a suspect false information about the evidence against the suspect,
standing alone, does not render a confession involuntary, giving the suspect false or
misleading information about the law is more problematic." (Emphasis added.) Morton,
286 Kan. at 652. Courts do not, however, automatically find an accused's statement to be
involuntary just because there may have been a misrepresentation of the law during the
interrogation. If a legal misrepresentation has been made, it must be considered along
with the rest of the voluntariness factors as part of the court's review of the totality of the
circumstances. See State v. Ackward, 281 Kan. 2, 15-16, 128 P.3d 382 (2006).

In his interrogation of Stenberg, Undersheriff Sharp contrasted rape that occurs
with an erect penis and rape that occurs with a soft penis. For example:

"[Sharp]: I'll be honest, the way [A.P. and K.P.] sat there and said at one point
was . . . your penis was soft and that's when penetration occurred both
orally and vaginally. So, the thing is, I mean your defense on the matter, if
that's the case, you aren't classically raping anybody. . . . If your penis is
hard and you are ramming it into somebody, a lot of people would say that
would be rape. Would you agree with me on that?
"[Stenberg]: A lot of people would say if the penis is soft it would be the same thing.
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"[Sharp]: But is it though? Is it the same? . . . It's not like you seduced somebody in
the bedroom and then forcefully raped somebody with an erect penis to get
off . . . and then ejaculated inside anybody. . . .
. . . .
"[Sharp]: You and I are miles apart on this, but to me when you think of a penis that is
erect, if it is an erect penis, then you're thinking that it is sexual prowess,
sexual power, and everything else. But if it's not erect, then you're done.
You're done masturbating, you've ejaculated. . . .
. . . .
"[Sharp]: This is more than just a casual brushing up against . . . but there is a
difference. There's a difference between taking your erect penis and
ramming it into a little girl's vagina, and there's a difference between if you
brushed your semi-erect or soft penis against somebody's labia. To me there
is a difference. What a jury is going to see is when they say there's
penetration, they're going to see you and they're going to see that little girl
on the stand and they are going to think that you're just ramming her with
your dick as hard as you can. Because they don't see that you give in to
urges and he rubbed his penis up against her vagina and the penetration was
just ever so slight. They don't do that. They see you just ramming her as
hard as you can to get sexual gratification because you don't give a shit.
That's what they see. That's what a jury's mind sees."

In Kansas, the crime of rape is defined in K.S.A. 2016 Supp. 21-5503(a):

"(1) Knowingly engaging in sexual intercourse with a victim who does not
consent to the sexual intercourse under any of the following circumstances:
(A) when the victim is overcome by force or fear; or
(B) when the victim is unconscious or physically powerless;
"(2) Knowingly engaging in sexual intercourse with a victim when the victim is
incapable of giving consent because of mental deficiency or disease, or when the victim
is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug
or other substance, which condition was known by the offender or was reasonably
apparent to the offender;
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"(3) sexual intercourse with a child who is under 14 years of age;
"(4) sexual intercourse with a victim when the victim's consent was obtained
through a knowing misrepresentation made by the offender that the sexual intercourse
was a medically or therapeutically necessary procedure; or
"(5) sexual intercourse with a victim when the victim's consent was obtained
through a knowing misrepresentation made by the offender that the sexual intercourse
was a legally required procedure within the scope of the offender's authority."

Stenberg was ultimately charged and convicted of raping K.P. pursuant to 21-
5503(a)(3), because K.P. was under 14 years old at the time of the offenses. Under
Jessica's Law, the presumptive sentence for a defendant who is 18 years or older and
convicted of rape is life in prison with no possibility of parole for 25 years. K.S.A. 2016
Supp. 21-6627(a)(1)(B). Stenberg contends that, because of K.P.'s age, any penetration
would have subjected him to the same sentence under Jessica's Law, regardless of
whether his penis was erect or soft. Given this statutory mandate, Stenberg argues
Undersheriff Sharp's suggestion during the interview that there was some sort of legal
distinction between rape with an erect penis and rape with a soft penis was an improper
coercive tactic that ultimately rendered his oral and written statements inadmissible.

In Ackward, the defendant was accused of shooting an unarmed victim in the back
as the victim was walking away after a drug transaction. During Ackward's interrogation,
the detective made several misrepresentations of the law based on the facts presented in
that particular case. First, the detective suggested that the killing might have been a
reckless homicide. The court held that it was "probably misleading" to contrast reckless
homicide with first-degree murder in that case because while it "may be accurate as a
matter of law, . . . reckless homicide is not likely to be within the contemplation of the
interrogating officer in the circumstances and when the victim was shot in the back." 281
Kan. at 14. The detective also misled the defendant about the law by suggesting that the
killing could be excused as self-defense, but "where the victim died when shot in the
back, neither perfect nor imperfect self-defense is likely to be applicable." 281 Kan. at
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15. The court considered the misrepresentations in light of the totality of the
circumstances, which also included repeated use of false information, phony forensic
analysis, and religious references. 281 Kan. at 15. Nevertheless, based on its review of
the totality of the circumstances, the court held that Ackward's statements were the
product of his free and independent will, noting that the mistakes of law were "not
egregious, and in some cases they were more an exaggeration rather than false." 281 Kan.
at 16.

In this case, Undersheriff Sharp's suggestion that there may be a difference
between rape with an erect penis and rape with a soft penis likely was misleading because
this fact makes no difference in a case such as this where the victims were younger than
14 years old, the perpetrator was older than 18 years old, and Jessica's Law applied. The
State would have charged Stenberg under 21-5503(a)(3) regardless of whether Stenberg's
penis was erect or soft when the penetration occurred. If a legal misrepresentation has
been made, it must be considered along with the rest of the voluntariness factors as part
of the court's review of the totality of the circumstances. See Ackward, 281 Kan. at 15-16.

Based on our review of the record here, it is a very close call as to whether there is
substantial competent evidence to support the district court's conclusion that no legal
misrepresentation was made here. But we need not make that decision in this case
because, as discussed below, even if Undersheriff Sharp's suggestion that there was some
sort of legal distinction between rape with an erect penis and rape with a soft penis was
an improper coercive tactic, we would still find Stenberg's oral and written statements
were voluntarily made based on our review of the totality of the circumstances.

c. Implicit threats and inappropriate promises

Finally, Stenberg argues his oral and written statements during the interview were
coerced because Undersheriff Sharp threatened to tell the county attorney whether he was
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cooperating with the investigation. Specifically, Stenberg alleges Sharp said he would
talk to the county attorney with regard to leniency if Stenberg confessed. Stenberg also
said Sharp would notify the county attorney if Stenberg failed to cooperate in the
investigation by not confessing. In cases where the defendant fails to cooperate or
confess, Sharp told Stenberg the county attorney was not usually inclined to engage in
any plea negotiations.

After reviewing the video and hearing other evidence, the district court concluded
that there were numerous times when Undersheriff Sharp said that if Stenberg did not
cooperate, it would go badly for him and the prosecutors may not offer a plea agreement.
The court held that the statements made by Sharp could be construed as implicit threats
for lack of cooperation with law enforcement and that Sharp's statements were "close to
the line." However, the court ultimately held:

"[The c]ourt finds by a preponderance of the evidence that the statement made or
statements made to Undersheriff Sharp are freely and voluntarily presented. They're not
the product of any coercion or undue threats. They're not the product of any promises by
Undersheriff Sharp that he was going to do or not do something on behalf of this
Defendant that he didn't do."

On appeal, Stenberg challenges the district court's holding as erroneous and cites
State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005), in support of the court's error. In
Swanigan, our Supreme Court addressed the issue of implicit threats for both cooperation
and lack of cooperation with law enforcement. Swanigan was accused of robbing a
convenience store. The interrogating officers urged Swanigan to confess so they could
report to the county attorney that he had "cooperated" with them. When Swanigan denied
involvement in the crime, the interrogating officers threatened to tell the county attorney
that Swanigan had refused to cooperate and suggested—like here—that the county
attorney would reject a deal for leniency. The officers also implied that Swanigan could
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be charged with five robberies, rather than just one, if he did not confess. 279 Kan. at 32-
33.

The Swanigan court ultimately held that "without more, a law enforcement
officer's offer to convey a suspect's cooperation to the prosecutor is insufficient to make a
confession involuntary." Swanigan, 279 Kan. at 33. But the Swanigan court held a higher
standard of review applied with regard to an officer's threats to tell the county attorney
about a defendant's lack of cooperation. The court concluded that threatening a defendant
with the prospect that his or her lack of cooperation will be forwarded to the sentencing
judge is inconsistent with Swanigan's right to remain silent as articulated in Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 279 Kan. at 36.

"[In Miranda], the Supreme Court established a prophylactic, procedural mechanism that
safeguards a defendant's Fifth Amendment privilege against self-incrimination from the
inherent pressures of the interrogation atmosphere. Included in the mechanism is a
requirement for informing the suspect of the right to remain silent, accompanied by the
assurance of a continuous opportunity to exercise it throughout the interrogation.
[Citation omitted.]" 279 Kan. at 36.

At the end of the day, however, the Swanigan court held that a law enforcement
threat to tell a charging authority about a defendant's lack of cooperation does not render
a confession involuntary per se, but again is a factor for determining voluntariness that
should be considered in the totality of the circumstances. 279 Kan. at 37. After
considering all of the circumstances, the court found that Swanigan's confession was
involuntary because there was evidence that (1) the officers repeatedly used false
information and evidence; (2) the tactics used by the officers—including threats to
convey Swanigan's lack of cooperation to the county attorney and threatening to charge
him with additional robberies unless he confessed—were unfair; and (3) Swanigan had
low intellect and susceptibility to anxiety. The court expressly noted that "any one of
these factors," when considered alone, might not be sufficient to show coercion. Rather,
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the combination of all of these factors led the court to find the statement involuntary. 279
Kan. at 39.

Turning back to the case here, Stenberg contends several statements made by
Undersheriff Sharp were impermissible under Swanigan. The video of the interview
supports Stenberg's arguments, including the following statements:

"[Sharp]: When the county attorney gets these kind of cases and the evidence we
currently have, they do not want to make a deal, they do not want to have any
reason to have a conversation with you. And what I mean by that, and I'm not
threatening you, but my conversations with them about this, is when
something like this happens, and we don't get the information from the
person we talk to when we know that information is there, they very much
want to take this to a jury type trial. . . . When I talk to the prosecutor and he
says that he wants to take this to a jury trial, and if that would happen with
those two girls getting on the stand with those two girls saying what they've
said, and with a taped interview, your chances are slim to none. . . .
. . . .
"[Sharp]: What I'm trying to get from you today is your cooperation. Because I'm
telling you, it doesn't matter if it's a Gray County jury, a Ford County jury,
the State of Kansas with conservative people we have in this state—you've
lived here 10 years—if there's a five-year-old and a four-year-old go up on
the stand, and they have to sit there and say, 'my dad, my stepdad did this to
me,' people are going to want to have your head on a platter. . . .
. . . .
"[Sharp]: I can't go to the prosecutor and help you out if you sit there and say . . . If I
tell them like you don't know, you don't know, there's circumstantial this,
circumstantial that. If I can't give them anything, the prosecutor is going to
want to take you to court. He's not going to want to make a plea
agreement. . . .
. . . .
"[Sharp]: If I go over there and tell [the county attorney] that you skirted around the
issue, and you bounced around the issue and we sat here and talked and you
15
had really no real information to give me, he's going to want to take you to
jury trial. He's going to beg that you go to a jury trial because he knows that
you're probably going to look at quite a bit of time at that stage, because he's
going to say that you're being untruthful about it. . . .
. . . .
"[Sharp]: It's not a matter if you did or you didn't—you need to tell me what happened
on your behalf. Because I really can't go to the prosecutor and tell him. . . . If
you have remorse about what happened, there's a chance that things are going
to be less than what they are now. Because if we have to put the girls on the
stand and put them through that, he's going to request anything and
everything he possibly can, plus the kitchen sink to throw at you. If you
accept this that you made a mistake and you man up to things, [the county
attorney] will take a plea agreement on it at my recommendation. But if he
sees I'm here for two and three and four hours and you're not wanting to play
ball. . . .
. . . .
"[Sharp]: You're leaving me no choice but to go into my office and draw up that
criminal affidavit, and I'm not saying you're not cooperating but you're not
cooperating. You've got stories and you're not telling me. . . .
. . . .
"[Sharp]: I understand from your perspective you're thinking if I confess to this then
I'm screwed, but you not confessing to things that you've done is screwing
you."

Like in Swanigan, Undersheriff Sharp not only suggested Stenberg would have
more positive consequences if he confessed to the crimes, but suggested negative
consequences if he did not confess: elimination of any opportunity to negotiate a plea
agreement with the county attorney and certain conviction by a jury. Sharp's statements
are inconsistent with Swanigan's right to remain silent as articulated in Miranda;
therefore, we will consider the impropriety of Sharp's threats as a factor in deciding
whether Stenberg's verbal and written statements were voluntary in the context of all of
the circumstances presented. See Swanigan, 279 Kan. at 37.
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Stenberg also contends that Undersheriff Sharp made improper promises of
leniency if he confessed. For example, Sharp told him "I'm throwing you a life preserver
here," and "I'm telling you the only person that can save you at least a little bit of grief is
me."

"[I]n order to render a confession involuntary as a product of a promise of some benefit
to the accused, including leniency, the promise must concern action to be taken by a
public official; it must be such that it would be likely to cause the accused to make a false
statement to obtain the benefit of the promise; and it must be made by a person whom the
accused reasonably believed to have the power or authority to execute it. [Citations
omitted.]" State v. Harris, 284 Kan. 560, 579-80, 162 P.3d 28 (2007).

There is no evidence of any such promise or benefit made in this case.
Undersheriff Sharp did not promise that a public official would perform any specific
benefit for Stenberg. As the district court noted, the county attorney did make plea offers,
but no deal was reached.

d. Totality of the circumstances

Stenberg argues the coercive tactics used by Undersheriff Sharp in interrogating
him necessarily rendered those statements involuntary and inadmissible. But as we noted
above, this court must consider the totality of the circumstances surrounding the
interrogation, including findings on the other voluntariness factors: the accused's mental
condition; the manner and duration of the interrogation; the accused's ability to
communicate with the outside world; the accused's age, intellect, and background; and
the accused's fluency with the English language. Walker, 283 Kan. at 596-97. "'The
ultimate legal conclusion regarding the suppression of evidence is then reviewed de
novo.'" Patterson, 304 Kan. at 274.

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With regard to Stenberg's mental condition, the district court noted Stenberg had
two associate degrees, spoke and understood English well, communicated and testified
appropriately, and did not appear affected by low blood sugar brought on by his diabetes.
As to the manner and duration of the interrogation, the court noted that the two-hour
interview was not overly long, and Undersheriff Sharp did not raise his voice, but was
conversational, professional, and sat close to Stenberg. The court reviewed the interview
video and found no evidence bearing on Stenberg's ability to communicate with the
outside world. With regard to Stenberg's age, intellect, and background, the court noted
that Stenberg was in his 40s, spoke in a manner consistent with someone of average or
above-average intelligence based on his educational background, and that he had
knowledge of how the criminal justice system worked based on his criminal history in
Kansas and California. Finally, the court found no reason to believe that Stenberg had
any issue with understanding the English language. With regard to the fairness of the
officer in conducting the interrogation, we note Sharp suggested on multiple occasions
during the interview that there may be some sort of legal distinction between rape with an
erect penis and rape with a soft penis. We also note statements by Sharp advising
Stenberg that if he did not confess, the county attorney would be unwilling to negotiate a
plea and he would face certain conviction at a jury trial.

Although we have found for purposes of this opinion that two of the interrogation
tactics employed by Undersheriff Sharp were coercive, we nevertheless find Stenberg's
statements were voluntary and the product of free and independent will when considered
in conjunction with all of the other circumstances surrounding the interrogation. In
making this finding, we do not condone the coercive tactics used by law enforcement in
this case. But when we consider the totality of the circumstances surrounding the
interrogation, we are not persuaded that the unfair tactics overcame Stenberg's free will
and caused his statements to be involuntary.

18
Our conclusion regarding the voluntary nature of Stenberg's oral and written
statements is supported by the timing of Stenberg's verbal and written admissions.
Assuming there is some sort of coercion, "there must be a link between the coercive
conduct of the State and the confession." Swanigan, 279 Kan. at 40 (noting Swanigan
changed his story shortly after officers lied to or threatened him). Here, Stenberg's
confession did not immediately follow Undersheriff Sharp's inappropriate threats or
misrepresentations of the law.

Finally, our conclusion is supported by the substance of the oral and written
statements made by Stenberg during the interrogation. As noted by the district court,
Stenberg's statements do not mirror what Undersheriff Sharp told him A.P. and K.P.
alleged, but instead go beyond the details provided by Sharp. See State v. Stone, 291 Kan.
13, 29, 237 P.3d 1229 (2010) ("Stone did not volunteer facts but rather he adopted facts
as they were suggested to him by the detective and as her insistence that he tell 'the truth'
became more adamant."). For example, Stenberg told Sharp that when he rubbed his
penis against K.P., she was lying down on the bed and he was standing at the edge of the
bed. The information provided by Stenberg was not revealed by K.P. to her foster mother
or to Special Agent Popejoy and, in turn, was not relayed from Sharp to Stenberg. With
regard to A.P., Stenberg told Sharp about two specific instances in which he put his penis
in A.P.'s mouth. Once, he woke up naked and she was in the bed next to him; he put his
penis to her mouth to "see what it felt like" and she opened her mouth. Another time,
A.P. walked into the bedroom while Stenberg was masturbating; when he got up to use
the bathroom, he walked past A.P. and "brushed [his penis] across her lips." In contrast,
A.P. only alleged that he had put his penis in her mouth.

For all of the reasons stated above, we find the district court did not err in
admitting Stenberg's confession as a product of his free and independent will.


19
2. Jury instruction on lesser included offense

Stenberg contends the district court erred in failing to instruct the jury on
attempted rape, a lesser included crime of rape. When analyzing jury instruction issues,
appellate courts make three determinations: (1) whether the issue can be reviewed, (2)
whether any error occurred, and (3) whether any error requires reversal. State v. Barber,
302 Kan. 367, 376-77, 353 P.3d 1108 (2015).

First, we address reviewability. Stenberg did not object to the alleged omission at
trial. Ordinarily, an appellant may not challenge an issue that was not preserved for
appeal. But there is a special rule for jury instructions, including lesser included crime
instructions, in the Kansas statutes. We review those challenges for "clear error." See
K.S.A. 2016 Supp. 22-3414(3) ("No party may assign as error the giving or failure to
give an instruction, including a lesser included crime instruction, unless the party objects
thereto before the jury retires to consider its verdict . . . or the failure to give an
instruction is clearly erroneous.").

Second, we must determine whether there was any error. To make that
determination, we consider whether the instruction was legally and factually appropriate,
employing an unlimited review of the entire record. State v. Williams, 295 Kan. 506, Syl.
¶ 4, 286 P.3d 195 (2012). Legal appropriateness is whether the instruction fairly and
appropriately states the applicable law. Like all questions of law, this court reviews the
legal question using an unlimited standard of review. To determine whether the jury
instruction was factually appropriate, this court determines if there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, to
support a factual basis for the instruction. State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283
P.3d 202 (2012).

20
Third, if we find there was an error (instruction was legally and factually
appropriate), then we must conduct a reversibility inquiry—what is commonly called the
"clear error" test. An instruction is clearly erroneous when "'the reviewing court is firmly
convinced that the jury would have reached a different verdict had the instruction error
not occurred.'" Barber, 302 Kan. at 377; Williams, 295 Kan. 506, Syl. ¶ 5. Whether
instructional error is clearly erroneous requires review of the entire record and de novo
determination. The burden of showing clear error belongs to the complaining party.
Williams, 295 Kan. at 516.

a. Legal and factual appropriateness

Rape, as charged in this case, is defined as sexual intercourse with a child who is
under 14 years of age. See K.S.A. 2016 Supp. 21-5503(a)(3). Sexual intercourse is
defined as "any penetration of the female sex organ by a finger, the male sex organ or any
object. Any penetration, however slight, is sufficient to constitute sexual intercourse."
See K.S.A. 2016 Supp. 21-5501(a).

To establish the crime of attempted rape, the State would have been required to
present evidence that Stenberg performed an overt act with the intent to commit a rape
but failed to complete the crime. See K.S.A. 2016 Supp. 21-5301(a). The elements of
attempted rape have been defined as requiring proof that the defendant:

"(1) [P]erformed an overt act toward penetrating the sexual organ of a female child under
the age of 14; (2) performed that act with the intent to penetrate the sexual organ of a
female child under the age of 14; and (3) failed to penetrate the sexual organ of a female
child under the age of 14." State v. Peterman, 280 Kan. 56, 60, 118 P.3d 1267 (2005).

An attempt to commit a crime is a lesser included offense of that crime. K.S.A. 2016
Supp. 21-5109(b)(3) (a lesser included crime includes "an attempt to commit the crime
charged"). Therefore, attempted rape is a legally appropriate lesser included offense.
21
The parties dispute whether the attempted rape instruction is factually appropriate.
Stenberg contends there was evidence presented at trial that could have supported the
conclusion that he did not penetrate K.P.'s sexual organ, and therefore the jury could have
found that he committed attempted rape. Stenberg correctly notes there was some
evidence that could be consistent with a lack of penetration. At trial, K.P. testified
Stenberg touched her "privates" with his "privates" by moving his hips while he was on
top of her. She stated that his privates went "on top" of her privates and that Stenberg's
movements did not "make [her] skin move." Undersheriff Sharp testified about Stenberg's
confession at trial. In his written statement, Stenberg admitted that he "rubbed [his] soft
penis against [K.P.] when [he] awoke from sleeping with no clothes on" and that he
"rubbed it against her vagina."

K.P.'s statements in her interview with Special Agent Popejoy were inconsistent.
She initially told Popejoy that Stenberg "put his pee-pee in my pee-pee" and "he put his
pee-pee in mine," using language that Popejoy established indicated that Stenberg put his
penis in her vagina. When Popejoy asked K.P. what Stenberg did with his pee-pee, K.P.
said that "he wiggled it." However, when Popejoy asked her whether she could feel it
"inside or only on her pee-pee," K.P. said it was "only on my pee-pee." And when
Popejoy demonstrated Stenberg's acts with a tissue box, K.P. indicated that Stenberg's
penis did not go inside of the line on the top of the box. K.P. role-played Stenberg's acts
both by acting out Stenberg's movements on the floor using her own body and by using
anatomically correct dolls provided by Popejoy. In both exercises, K.P. appeared to be
demonstrating intercourse positions.

Popejoy testified at trial, however, that K.P.'s demonstrations of intercourse
positions led her to conclude that penetration had occurred:

"Q: Take me through that disclosure. Was [K.P.] able to describe where, and when, or
how?
22
"A: Yes. She was able to describe that where she was at was in her mother's bedroom
that she shared with Daddy John [Stenberg]. In that—in that bedroom, she laid flat
on the bed and [Stenberg] kneeled over her[]. And, as a matter of fact, she began to
show with her own body how this went, and she did the crouching on the floor with
her hands and knees on the floor, over, and would describe how she laid on the
floor and how his privates would touch her privates as he was kneeling over her.
. . . .
"Q: Okay. Based on the description that was provided to you by [K.P.], were you able
to form an opinion as to whether or not there was any penetration?
"A: The way she was talking about he would wiggle back and forth and thrust his hips,
and she demonstrated very much an intercourse position with herself moving back
and forth. That, with him, it would very—it would be nearly impossible for him to
have his penis on the outside of the labia majora, the two largest lips on the female
anatomy, without penetrating and going—breaking that pla[ne] into the labia
minora and the vaginal opening."

K.P. was four years old at the time of the incident, five years old at the time she
disclosed the incident to Casanova and Popejoy, and six years old at the time of her trial
testimony. The State contends that K.P.'s testimony should not be treated as that of a
"trained professional[] regarding degrees of penetration."

However, based on the record as a whole, we find sufficient evidence, viewed in
the light most favorable to the defendant, to support a factual basis for the lesser included
offense instruction for attempted rape. See Plummer, 295 Kan. 156, Syl. ¶ 1.

b. Clear error

Notwithstanding our finding that the lesser included instruction would have been
legally and factually appropriate, we cannot reverse Stenberg's conviction unless we
determine that the district court's failure to instruct the jury on attempted rape was clearly
erroneous. To do so, this court must be firmly convinced that the jury would have
23
convicted Stenberg of a different crime had the instruction error not occurred. See
Barber, 302 Kan. at 377; Williams, 295 Kan. 506, Syl. ¶ 5.

In support of a different verdict, Stenberg's sole assertion is that the jury would
have convicted Stenberg of attempted rape because there was a "lack of evidence" of
penetration. But this assertion is not accurate. K.P.'s statements in the video were
inconsistent on the issue of penetration, as she alternately described Stenberg as putting
his penis "in" or "on" her vagina. The same video showed her demonstrating that
Stenberg engaged in intercourse positions with her. Popejoy testified that based on K.P.'s
description of Stenberg's actions, it would have been "nearly impossible" for there to be
no penetration. To establish penetration, "penetration of the vulva or labia is sufficient."
State v. Borthwick, 255 Kan. 899, 914, 880 P.2d 1261 (1994). The evidence supported the
jury's conclusion that Stenberg raped K.P.; we are not firmly convinced that the jury
would have decided this case differently had the lesser included offense of attempted rape
instruction been provided.

3. Lifetime postrelease supervision

Stenberg argues that the district court improperly ordered lifetime postrelease
supervision, which necessarily renders his sentence illegal under K.S.A. 22-3504(1).
Whether a sentence is illegal is a question of law over which this court has unlimited
review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).

Stenberg was convicted of one count of rape, two counts of aggravated criminal
sodomy, and one count of aggravated indecent liberties with a child. The sentence for
each conviction was off-grid; thus, the district court ordered life in prison with no
possibility of parole for 25 years on each count. The court also ordered lifetime
postrelease supervision for all four counts.

24
"An inmate who has received an off-grid indeterminate life sentence can leave
prison only if the successor to the Kansas Parole Board grants the inmate parole.
Therefore, a sentencing court has no authority to order a term of postrelease supervision
in conjunction with an off-grid indeterminate life sentence." State v. Cash, 293 Kan. 326,
Syl. ¶ 2, 263 P.3d 786 (2011).

The district court erred in ordering lifetime postrelease supervision. Accordingly,
we vacate that portion of the sentence imposing lifetime postrelease supervision for each
of the convictions.

Affirmed in part and vacated in part.