State v. Umphenour

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NOT DESIGNATED FOR PUBLICATION

No. 116,577


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HEATH ALLEN UMPHENOUR,
Appellant.


MEMORANDUM OPINION

Appeal from Doniphan District Court; JAMES A. PATTON, judge. Opinion filed May 18, 2018.
Affirmed in part and vacated in part.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

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

Before ARNOLD-BURGER, C.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: A jury convicted Heath Allen Umphenour of one count of
aggravated indecent liberties with a child, one count of aggravated criminal sodomy, four
counts of sexual exploitation of a child, and two counts of breach of privacy. Four of
Umphenour's convictions were off-grid Jessica's Law offenses. For his off-grid Jessica's
Law convictions and Kansas Sentencing Guidelines Act (KSGA) grid convictions, the
trial court sentenced Umphenour to a controlling hard 25 life sentence plus 68 months'
imprisonment followed by lifetime postrelease supervision.
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Umphenour now appeals his convictions and sentences, arguing the following: (1)
that some of his convictions for sexual exploitation of a child are multiplicitous; (2) that
the prosecutor committed error during closing arguments; (3) that the trial court erred by
denying his departure request to be sentenced on the KSGA grid for his off-grid Jessica's
Law convictions; and (4) that the trial court erred by ordering that he serve lifetime
postrelease supervision for his off-grid Jessica's Law offenses. Finding that the trial court
erred when it ruled that Umphenour must serve lifetime postrelease supervision following
the completion of his off-grid Jessica's Law sentences, we vacate the imposition of
lifetime postrelease supervision as to Umphenour's four off-grid Jessica's Law
convictions and affirm his remaining convictions and sentences.

After dating for several months, Umphenour and K.D.B. moved into a house
together; they married shortly thereafter. A few months after their marriage in December
2011, Umphenour adopted K.D.B.'s three daughters—M.B.U., K.B.U., and H.B.U.
M.B.U. was born in January 1998; K.B.U. was born in February 2002; and H.B.U. was
born in February 2003.

In addition to her daughters, K.D.B. allowed J.P.K., who K.D.B. had babysat since
she was an infant and considered family, to stay at her house with Umphenour frequently.
J.P.K. was born in February 1999.

On September 28, 2012, M.B.U. attended her high school homecoming football
game followed by her high school homecoming dance. After the dance around 11:30
p.m., K.D.B. took M.B.U. and several of her friends to IHOP. As K.D.B. and M.B.U.
were leaving, Umphenour was outside the house building a bonfire; K.B.U. was getting
ready for bed. When K.D.B. and M.B.U. got back home in the early morning hours of
September 29, 2012, both Umphenour and K.B.U. were in bed.

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In the upcoming months, Umphenour and K.D.B.'s relationship deteriorated. On
June 16, 2013, K.D.B. asked Umphenour to move out of the house. Right after
Umphenour moved out, K.B.U. told her mother that Umphenour had sexually molested
her "the night of homecoming, when [M.B.U. and K.D.B.] left to go for breakfast." She
explained that she had told M.B.U. about the sexual molestation the day after
homecoming, but the two agreed not to tell anyone because they believed they might be
removed from their mother's custody.

K.B.U.'s specific allegation of sexual molestation was as follows: K.B.U. alleged
"that she was laying in her bed [when Umphenour] came into her room and stuck his
hand down her pants, [and then] pulled her shorts down and licked her [vagina]." K.B.U.
alleged that although she pretended to be asleep, she saw Umphenour use his cell phone
for light, while he was touching and licking her vagina. K.B.U. further alleged that when
Umphenour had finished, Umphenour came back and asked her if she was okay; she
responded by asking Umphenour if she could take a shower. She asserted that when she
went to take a shower, she saw Umphenour in the corner of one of the bathroom doors,
holding his cell phone up. She asserted that after she shut and locked this bathroom door,
she could hear Umphenour trying to pick the lock of the door.

Once K.B.U. told her mother about the sexual molestation, K.D.B. confronted
M.B.U. regarding whether K.B.U. had previously told her that Umphenour had sexually
molested her. M.B.U., who had not been at home when K.B.U. made the allegation
against Umphenour, confirmed that K.B.U. had told her that Umphenour had sexually
molested her while they were getting breakfast following the homecoming events. She
also confirmed that they decided not to tell anyone because they feared that they would
be removed from K.D.B.'s custody. K.D.B. contacted the police.

During the ensuing police investigation, police seized an iPhone 4s, an iPhone 5,
and a computer. The iPhone 4s was Umphenour's cell phone until Christmas 2012, when
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he gave the cell phone to a daughter from a previous marriage. Umphenour decided to
give the iPhone 4s to his daughter because he had upgraded to an iPhone 5. Before giving
the iPhone 4s to his daughter, Umphenour placed a factory reset on the cell phone, which
erased all information stored on the cell phone. Umphenour was still using the iPhone 5
when police began investigating this case. The computer was the family desktop
computer located in Umphenour and K.D.B.'s home.

On the computer, police found two backups of Umphenour's iPhone 4s. Contained
within these backups was all the "logical information" within Umphenour's iPhones,
including his photos, documents, notes, and installed applications. According to those
backups, an application called Video Safe had been installed on Umphenour's iPhone 4s.
To access the Video Safe application, a password was required. The password to the
Video Safe application installed on Umphenour's iPhone 4s was 4848; 48 was
Umphenour's old high school football jersey number. Inside the files of the Video Safe
application were the following: (1) a photo of a female's genitals; (2) a different photo of
the same female's genitals; and (3) a film of two nude females changing clothes. It is
undisputed that the film of the two nude females was taken at night and from outside a
window.

When asked about the photos of the female's genitals, K.B.U. identified the
genitals as her own. The Video Safe application time and date information linked to these
photos was September 29, 2012, 1:47 a.m. and 1:53 a.m., respectively. When asked about
the film depicting the nude females, M.B.U. and J.P.K. identified themselves as the nude
females. They both asserted they had no idea anyone was filming them. The Video Safe
application time and date information linked to the film was November 13, 2012, at 6:48
p.m. Further, the GPS coordinates associated with the film indicated that the film was
made at or within feet of Umphenour's and K.D.B.'s house.

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In addition to the genital photos and the film, the police found several copies of a
photo of the top half of a female's breast, which M.B.U. identified as her own, and
several copies of a photo of males engaging in anal sex in Umphenour's iPhone 4s
backups. The photo of the males engaging in anal sex was also on Umphenour's iPhone 5.
This photo had previously been identified as child pornography by the Child Victim
Identification Program and National Center for Missing and Exploited Children.
Moreover, a search of Umphenour's Internet history revealed that during his marriage
with K.D.B., he had searched or viewed hundreds of pornographic videos with incest
themes, very often fathers engaging in sexual acts with their daughters.

The State ultimately charged Umphenour with 16 counts based upon the alleged
sexual molestation of K.B.U. and the photos and film contained in the computer backups.
Concerning K.B.U., Umphenour was charged with the following: one count of
aggravated indecent liberties with a child for lewdly fondling or touching of K.B.U., an
off-grid person felony in violation of K.S.A. 2012 Supp. 21-5506(b)(3)(A); one count of
aggravated criminal sodomy for intentionally sodomizing K.B.U., an off-grid person
felony in violation of K.S.A. 2012 Supp. 21-5504(b)(1); four counts of sexual
exploitation of K.B.U.—two counts for using K.B.U. to engage in sexually explicit
conduct with the intent to promote her performance, each off-grid person felonies in
violation of K.S.A. 2012 Supp. 21-5510(a)(1), and two counts for possessing visual
depictions of K.B.U. engaged in sexually explicit conduct, each severity level 5 person
felonies in violation of K.S.A. 2012 Supp. 21-5510(a)(2); and one count of attempted
breach of privacy for the attempted photograph of K.B.U. in the bathroom, a severity
level 10 person felony in violation of K.S.A. 2012 Supp. 21-6101(a)(6) and 21-5301(a).
Significantly, the two photos of K.B.U.'s genitals found on the computer backups of
Umphenour's iPhone 4s served as the basis for the State's charges for sexual exploitation
of a child in violation of K.S.A. 2012 Supp. 21-5510(a)(2).

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Concerning the film, the State charged Umphenour with two counts of breach of
privacy,—one count for violating M.B.U.'s privacy and one count for violating J.P.K.'s
privacy—with each count being a severity level 8 person felony in violation of K.S.A.
2012 Supp. 21-6101(a)(6). The State's remaining charges involved the photos of the
breast and the males engaging in anal sex. For these photos, the State charged
Umphenour with seven counts of sexual exploitation of a child.

Umphenour's jury trial on his charges was held between May 9, 2016, and May
20, 2016. During his trial, through the testimony of K.D.B., K.B.U., M.B.U., J.P.K.,
police officers, and computer forensic analysts, the State presented the preceding
evidence. Umphenour's trial strategy hinged on the following arguments: (1) that there
were rumors that K.B.U. lied about being molested which supported his innocence; (2)
that there were inconsistencies in K.B.U.'s and M.B.U.'s statements; (3) that there was no
evidence to support his guilt; (4) that the lead investigator failed to fully investigate the
case; (5) that he did not behave like a guilty man; and (6) that the State was running a
"smear campaign" against him because he liked to watch porn.

In the end, the jury convicted Umphenour of all the counts involving K.B.U. as the
victim except for the count of attempted breach of privacy. The jury convicted
Umphenour of both counts of breach of privacy stemming from the film of M.B.U. and
J.P.K. The jury acquitted Umphenour on the remaining seven counts of sexual
exploitation of a child stemming from the photos of the breast and the males engaging in
anal sex.

Before sentencing, Umphenour moved for a durational departure in which he
requested that he be sentenced on the KSGA grid and then receive a further departure to
half his presumptive grid sentence for his four off-grid Jessica's Law offenses. He argued
that he was entitled to this departure because of his lack of criminal history, his good
employment record, his past efforts to support his family financially, his good behavior
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while awaiting trial, his desire to rehabilitate and reunite with family, and his current
family support.

At sentencing, the State opposed this motion. It argued that the mitigating factors
that Umphenour had provided for his durational departure were not compelling. The trial
court agreed with the State, denying the durational departure motion. It then sentenced
Umphenour for his crimes.

For his aggravated indecent liberties, aggravated sodomy, and off-grid sexual
exploitation of a child convictions, the trial court sentenced him to four concurrent hard
25 life sentences, followed by lifetime postrelease supervision. For each of his severity
level 5 sexual exploitation of a child convictions, the trial court sentenced Umphenour to
34 months' imprisonment followed by lifetime postrelease supervision. For each of his
breach of privacy convictions, the trial court sentenced Umphenour to 9 months'
imprisonment. The trial court ordered that Umphenour's severity level 5 sexual
exploitation of a child convictions and breach of privacy convictions run consecutive to
each other and to his concurrent life sentences. Thus, Umphenour's controlling sentence
was a hard 25 life sentence plus 68 months' imprisonment followed by lifetime
postrelease supervision.

Are Umphenour's Sexual Exploitation of a Child Convictions Multiplicitous?

Umphenour's first argument involves whether some of his convictions are
multiplicitous, violating his rights under the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of
Rights. Umphenour recognizes that he did not challenge any of his convictions as
multiplicitous below. Yet, he argues that this court should consider his argument, in part,
to ensure his fundamental rights are not violated. This court has previously considered
multiplicity arguments for the first time on appeal because such arguments involve a
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defendant's fundamental right to a fair trial and involve only questions of law. State v.
Housworth, No. 115,836, 2017 WL 2834502, at *13 (Kan. App. 2017) (unpublished
opinion). For these same reasons, we will consider Umphenour's arguments even though
he raises them for the first time on appeal.

Because multiplicity involves a question of law, this court has unlimited review
over Umphenour's arguments. State v. Hirsh, 54 Kan. App. 2d 705, 718, 405 P.3d 41
(2017). Moreover, to the extent Umphenour's argument requires this court to interpret
statutes, interpretation of statutes also involves a question of law over which this court
has unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The
most fundamental rule while engaging in statutory interpretation is that the intent of the
Legislature governs. State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016).

Next, we can dispose of all of Umphenour's arguments except his arguments
concerning his convictions for sexual exploitation of a child under K.S.A. 2012 Supp. 21-
5510(a)(2) because this is the only argument that Umphenour has properly briefed. In the
introduction of his brief, Umphenour has requested that this court vacate one of his two
convictions for sexual exploitation of a child under K.S.A. 2012 Supp. 21-5510(a)(2),
one of his two convictions for sexual exploitation of a child under K.S.A. 2012 Supp. 21-
5510(a)(1), and one of his two convictions for breach of privacy under K.S.A. 2012
Supp. 21-6101(a)(6). He alleges that the preceding convictions were multiplicitous.
Nevertheless, the only analysis Umphenour has actually provided in his brief concerning
multiplicity involves his two convictions for sexual exploitation of a child under K.S.A.
2012 Supp. 21-5510(a)(2), which concern the possession of the two photos of K.B.U.'s
genitals.

It is a well-known rule that a point raised incidentally in a brief and not argued
therein is deemed waived and abandoned. State v. Sprague, 303 Kan. 418, 425, 362 P.3d
828 (2015). Here, by not providing any argument or analysis on why his convictions for
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sexual exploitation of a child under K.S.A. 2012 Supp. 21-5510(a)(1) and breach of
privacy under K.S.A. 2012 Supp. 21-6101(a)(6) were multiplicitous, Umphenour has
abandoned his ability to challenge these convictions as multiplicitous on appeal.
Accordingly, the only multiplicity argument Umphenour has properly briefed for appeal
is his argument concerning the two counts of sexual exploitation of a child under K.S.A.
2012 Supp. 21-5510(a)(2). In turn, we will address only this argument.

Concerning this argument, Umphenour argues that his convictions are
multiplicitous because they arise from the same conduct—when he backed up his iPhone
4s—and because K.S.A. 2012 Supp. 21-5510(a)(2) only allows one unit of prosecution.
In making these arguments, Umphenour relies heavily on our Supreme Court's decision
in State v. Thompson, 287 Kan. 238, 200 P.3d 22 (2008), while criticizing this court's
decision in State v. Hulsey, No. 109,095, 2014 WL 4627486 (Kan. App.) (unpublished
opinion), rev. denied 302 Kan. 1015 (2015). Umphenour recognizes that the Hulsey
decision is on point but argues that it was wrongly decided. The State argues that the
Hulsey court's analysis regarding the Legislature's intent when enacting K.S.A. 2012
Supp. 21-5510(a)(2)'s language "possessing any visual depiction of a child" establishes
that K.S.A. 2012 Supp. 21-5510(a)(2) allows for multiple units of prosecution; therefore,
the State argues that the analysis in Hulsey definitively proves that Umphenour's
convictions are not multiplicitous.

K.S.A. 2012 Supp. 21-5510(a)(2) provides: "Sexual exploitation of a child is:
possessing any visual depiction of a child under 18 years of age shown or heard engaging
in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to
the prurient interest of the offender or any other person."

Again, Umphenour was charged and convicted of two counts of sexual
exploitation of a child under K.S.A. 2012 Supp. 21-5510(a)(2) for possessing two photos
of K.B.U.'s genitals. These photos were found in a backup of Umphenour's iPhone 4s
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inside the Video Safe application. At trial, these photos were admitted into evidence as
State's Exhibits 41 and 42, but both parties often referred to the photos by their computer
file names—"185.jpg" and "187.jpg," respectively. The State alleged that Umphenour
possessed the photos between November 15, 2012, and June 16, 2013—the date
Umphenour allegedly backed up his iPhone 4s for the first time and the date that K.D.B.
made Umphenour move out of the house.

In State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), our Supreme Court
developed a test for determining whether a defendant's convictions for multiple violations
of the same statute were multiplicitous; this is the "unit of prosecution test." The
Schoonover court explained: "There are two components to this inquiry, both of which
must be met for there to be a double jeopardy violation: (1) Do the convictions arise
from the same conduct? and (2) By statutory definition are there two offenses or only
one?" 281 Kan. at 496. To determine whether the convictions arise from the same
conduct, some factors that may be considered are "(1) whether the acts occur at or near
the same time; (2) whether the acts occur at the same location; (3) whether there is a
causal relationship between the acts, in particular whether there was an intervening event;
and (4) whether there is a fresh impulse motivating some of the conduct." 281 Kan. at
497. To determine whether by statutory definition there are two offenses or only one, "the
statutory definition of the crime determines what the legislature intended as the allowable
unit of prosecution." 281 Kan. at 497.

In short, the Legislature's intent determines the allowable unit of prosecution under
the Schoonover unit of prosecution test. Yet, if the Legislature's intent is ambiguous,
courts should apply the rule of lenity, finding that statute authorizes only one conviction
for a defendant's unitary conduct. 281 Kan. at 472.

In Thompson, our Supreme Court applied the unit of prosecution test to determine
if Thompson's multiple convictions under K.S.A. 65-7006, a statute that criminalized
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possession of certain substances with the intent to manufacture a controlled substance,
were multiplicitous. 287 Kan. at 245-52. Thompson had possessed two different
substances that were considered illegal under K.S.A. 65-7006, and he had been convicted
of two separate crimes for his possession of the two different substances. The Thompson
court held that Thompson's convictions were multiplicitous because Thompson had
satisfied both prongs of the unit of prosecution test. 287 Kan. at 252.

First, the Thompson court found that the possession of the contraband substances
stemmed from a unitary conduct given that it was Thompson's singular goal to
manufacture a controlled substance. 287 Kan. at 245. Second, the Thompson court found
that the "Kansas Legislature failed to state whether possession of each item in the statute
for a single manufacturing operation may be prosecuted separately." 287 Kan. at 251. As
a result, under the rule of lenity, the Thompson court held that Thompson could only be
convicted of one violation of K.S.A. 65-7006. 287 Kan. at 251-52.

In Hulsey, this court considered whether Hulsey's 89 convictions of sexual
exploitation of a child under K.S.A. 2010 Supp. 21-5510(a)(2) were multiplicitous. 2014
WL 4627486, at *1. All of Hulsey's convictions were based upon his possession of
sexually explicit photos of the child-victim which were found on a computer; the photos
had a creation date of either June 23, 2010, or June 28, 2010, or no creation date. On
appeal to this court, Hulsey argued that his case was analogous to Thompson because like
Thompson's unitary goal of manufacturing a controlled substance, he had the unitary goal
of arousing or gratifying his sexual desires by possessing all of the photos. Hulsey further
argued that his case was analogous to Thompson's case because "although the legislature
'could have provided that each item possessed . . . constitute[d] a separate violation of the
statute, it did not do so.'" 2014 WL 4627486, at *10 (quoting Thompson, 287 Kan. at
247).

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The Hulsey court rejected Hulsey's argument because it failed under the second
prong of the unit of prosecution test. In doing so, the Hulsey court provided a detailed
analysis on K.S.A. 2010 Supp. 21-5510(a)(2)'s legislative history, including how the
Legislature amended the crime of sexual exploitation of a child for possession of sexually
explicit images of a child after this court's decision in State v. Donham, 29 Kan. App. 2d
78, 81, 24 P.3d 750 (2001).

In Donham, this court held that defendants could be convicted of only one crime
of sexual exploitation of a child under the plain language of K.S.A. 2000 Supp. 21-
3516(a)(2), an earlier version of K.S.A. 2017 Supp. 21-5510(a)(2). 29 Kan. App. 2d at
84. K.S.A. 2000 Supp. 21-3516(a)(2) prohibited the possession of the following:

"any film, photograph, negative, slide, book, magazine or other printed or visual medium
or any audio tape recording or any photocopy, video tape, video laser disk, computer
hardware, software, floppy disk or any other computer related equipment or computer
generated image that contains or incorporates in any manner any film, photograph,
negative, photocopy, video tape or video laser disk in which a visual depiction of a child
under 18 years of age is shown or heard engaging in sexually explicit conduct . . . ."

Donham had been convicted of 90 counts of sexual exploitation of a child based
upon individual sexually explicit images found on 18 floppy disks. The Donham court
explained that "[t]he only . . . way to justify charging Donham with 90 counts of sexual
exploitation of a child is to interpret the statute as prohibiting possession of each sexually
explicit image of a child stored on or retrieved from a floppy disk." 29 Kan. App. 2d at
83. The Donham court found that under the plain language of K.S.A. 2000 Supp. 21-
3516(a)(2), such an interpretation was not possible because charging centered on the
possession of the medium that contained the sexual explicit images, not the sexually
explicit images themselves. 29 Kan. App. 2d at 82-83. The Donham court concluded: "If
the legislature had intended to criminalize possession of each sexually explicit image of a
child contained on a floppy disk, the legislature would have included language such as
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possession of any image stored on or retrieved from a floppy disk as a means of violating
the statute." (Emphasis added.) 29 Kan. App. 2d at 83.

Nevertheless, in 2005 Senate Bill 147, the Legislature amended K.S.A. 21-
3516(a)(2) to read as follows:

"possessing any film, photograph, negative, slide, book, magazine or other printed or
visual medium or any audio tape recording or any photocopy, video tape, video laser
disk, computer hardware, software, floppy disk or any other computer related equipment
or computer generated image that contains or incorporates in any manner any film,
photograph, negative, photocopy, video tape or video laser disk in which a visual
depiction visual depiction, including any photograph, film, video picture, digital or
computer generated image or picture, whether made or produced by electronic,
mechanical or other means, where such visual depiction of a child under 18 years of age
is shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy
the sexual desires or appeal to the prurient interest of the offender, the child or another."
L. 2005, ch. 162, § 4.

Of note, the 2005 amendments remained in effect until 2010, when the Legislature
recodified the crime of sexual exploitation of a child under K.S.A. 21-5510 and amended
subsection (a)(2). The 2010 amendments resulted in the following language, which is still
in effect today: "Sexual exploitation of a child is: . . . possessing any visual depiction of
a child under 18 years of age shown or heard engaging in sexually explicit conduct with
intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the
offender or any other person." L. 2010, ch. 136, § 74; K.S.A. 2017 Supp. 21-5510(a)(2).

When the Hulsey court considered the 2005 amendment, it emphasized the rule
that "when the legislature revises an existing law, the court presumes that the legislature
intended to change the law as it existed prior to the amendment. State v. Snellings, 294
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Kan. 149, 157, 273 P.3d 739 (2012)." 2014 WL 4627486, at *11. The Hulsey court then
concluded:

"[T]he legislature removed language criminalizing computer equipment containing child
pornography, leaving only the criminalization of 'any visual depiction' of child
pornography. With this revision, the clear statutory language criminalizes each sexually
explicit visual image containing a child under 18 years old. How the images are collected
or contained makes no difference under [the current statute] . . . . Thus, by statutory
definition, Hulsey is guilty of possessing each image of a child less than 18 years old. It
does not matter when he obtained or accessed the images. . . ." 2014 WL 4627486, at
*12.

Turning our focus back to Umphenour's arguments, we can divide Umphenour's
arguments into two categories: (1) that following the Hulsey court's holding would lead
to absurd results; and (2) that following the Hulsey court's interpretation of K.S.A. 2010
Supp. 21-5510(a)(2) would put Kansas at odds with other jurisdictions' interpretations of
their particular sexual exploitation of child laws.

Regarding Umphenour's first argument, Umphenour argues that the Hulsey court's
interpretation of K.S.A. 2010 Supp. 21-5510(a)(2) is absurd because this could lead to a
person being convicted of hundreds of counts of sexual exploitation of a child based upon
a single unitary act, such as buying a magazine or computer disk with multiple sexually
explicit photos. Yet, as the State points out in its brief, although persons may be open to
significantly more convictions under the Hulsey court's interpretation of K.S.A. 2010
Supp. 21-5510(a)(2), the practical effect of the Hulsey court's interpretation for
sentencing purposes would be minimal because in cases involving multiple convictions,
the defendant's total sentence cannot exceed twice his or her base sentence. See K.S.A.
2017 Supp. 21-6819(b)(4) (the "double rule" statute).

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Additionally, both Umphenour's first and second arguments ignore that the Hulsey
court did not create this interpretation in a vacuum; instead, it is founded upon our
Legislature's intent. Once again, the Schoonover court held that "the statutory definition
of the crime determines what the legislature intended as the allowable unit of
prosecution." 281 Kan. at 497. In other words, it is the Legislature's intent that controls
the allowable unit of prosecution. In consequence, Umphenour's arguments regarding
how other jurisdictions interpret their sexual exploitation of a child statutes is irrelevant.
All that matters is what the Kansas Legislature intended when it enacted the current
language of K.S.A. 2012 Supp. 21-5510(a)(2). And historically in Kansas, the use of the
word "any" in a criminal statute has resulted in courts finding that there are multiple units
of prosecution in cases where the defendant possessed multiple prohibited items. See
Housworth, 2017 WL 2834502, at *14; State v. Booton, No. 113,612, 2016 WL 4161344,
at *10 (Kan. App. 2016) (unpublished opinion); Hulsey, 2014 WL 4627486, at *12; State
v. Odegbaro, No. 108,493, 2014 WL 2589707, at *9 (Kan. App. 2014) (unpublished
opinion), rev. denied 302 Kan. 1018 (2015); State v. Odell, No. 105,311, 2013 WL
310335, at *8 (Kan. App. 2013) (unpublished opinion).

Most importantly, Umphenour has not provided any persuasive argument why the
Hulsey court's interpretation of the Legislature's intent when enacting the language in the
current sexual exploitation of a child law is wrong. Umphenour tries to equate his case to
the Thompson case. Just like in Hulsey, Umphenour argues that if the Legislature truly
wanted multiple units of prosecution under K.S.A. 2012 Supp. 21-5510(a)(2) it "'could
have provided that each item possessed . . . constitute[d] a separate violation of the
statute,' but it chose not do so." (Quoting Thompson, 287 Kan. at 247.)

Very clearly, however, the sexual exploitation of a child law that was in effect
when Donham was decided prohibited possession of any medium containing images of
children engaged in sexually explicit conduct. K.S.A. 2000 Supp. 21-3516(a)(2). Yet,
with the passing of Senate Bill 147, the Legislature amended the sexual exploitation of a
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child law so the possession of "any visual depiction" of a child engaged in sexually
explicit conduct constitutes a crime. L. 2005, ch. 162, § 4. Hence, when the Legislature
amended the sexual exploitation of a child statute in a manner that criminalized the
possession of any visual depiction of sexually explicit images of children instead of
criminalizing the possession of the medium containing the images of the sexually explicit
photos of children, the Legislature did exactly what the Donham court suggested but what
Umphenour asserts it did not—the Legislature provided that possession of each visual
depiction of children engaging in sexually explicit conduct constituted a crime.

Finally, if there were any doubts about the Legislature's intent when enacting 2005
Senate Bill 147, the Summary of Legislation issued by the Legislative Research
Department, in conjunction with the Legislative Coordinating Council, of which the
President of the Senate and Speaker of the House are members, erases all doubts. The
Summary of Legislation for 2005 Senate Bill 147 states: "The bill . . . amends the crime
of sexual exploitation of a child to allow one count of sexual exploitation of a child to be
filed for each individual image of child pornography an offender possesses and makes
other changes to update the language of the crime." (Emphasis added.)

Accordingly, it is readily apparent that K.S.A. 2012 Supp. 21-5510(a)(2) allows
multiple units of prosecution—one unit per visual depiction of a child engaging in
sexually explicit conduct. As a result, Umphenour's two convictions for sexual
exploitation of a child under K.S.A. 2012 Supp. 21-5510(a)(2) are not multiplicitous, and
we affirm.

Did the Prosecutor Commit Error During Closing Arguments?

Umphenour's second argument concerns prosecutorial error. He alleges that the
prosecutor misstated facts during closing arguments about the time and date the photos of
17

K.B.U.'s genitals were taken. Once again, the photos of K.B.U.'s genitals were contained
in State's Exhibit 41, also called 185.jpg, and State's Exhibit 42, also called 187.jpg.

Regarding claims of prosecutorial error, our Supreme Court has created a two-step
standard of review: (1) Did "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"; and (2) if so, did the error resulting from the prosecutorial acts "prejudice[] the
defendant's due process rights to a fair trial." State v. Sherman, 305 Kan. 88, 109, 378
P.3d 1060 (2016). Under step two, "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 . . . .' [Citation omitted.]" 305
Kan. at 109.

It is a well-known rule that prosecutors cannot comment on facts not in evidence.
State v. Stimec, 297 Kan. 126, 128, 298 P.3d 354 (2013). Yet, it is within the wide
latitude afforded prosecutors during closing arguments to make reasonable inferences
from the evidence. In determining whether a prosecutor's statements were reasonable
inferences from the evidence, courts should view the prosecutors' statements in context.
Furthermore, prosecutors may direct a jury to specific evidence in an effort to establish
that the victim's testimony is more believable than the defendant's testimony or theory.
State v. Duong, 292 Kan. 824, 830-32, 257 P.3d 309 (2011).

The specific statements by the prosecutor Umphenour takes issue with are as
follows:

"So when we're looking at [State's Exhibit] 41, something we really want you to focus on
is look at the timestamp on that image. 9-29-2012 at 1:47 Central Daylight Time.
18

Remember how long [K.D.B.] and everybody else was at IHOP. . . . Until at least 4:00
a.m.
. . . .
"So Video Safe this image was put in Video Safe, and here's your date and time
right here. . . .
. . . .
". . . Now this is a different image. This is 187.jpg, [State's] Exhibit 42. . . .
"Well, here's something I'd like to point out here as well. Look at the timestamp
on this. Remember [K.B.U.] in her interview and when she was talking about it said that
she thought this whole incident with [Umphenour] lasted she thought maybe ten minutes.
She's pretty close, because if you look at this we know at least six minutes[,] what's going
on because on 9-29-2012 at 1:53 Central Daylight Time was when the next picture was
taken. That's six minutes and 18 seconds after the first one had been taken. And you also
know that the incident didn't start immediately when the first picture was taken, and it
ended as soon as the last picture was taken. You know it lasted longer than that, because
if you recall his hands were down her pants before her pants got pulled down. So ten
minutes is under the circumstances pretty close."

Umphenour alleges that the prosecutor's statements constituted misstatements of
fact because the State's computer forensic analysist testified about the difficulties in
determining when a photo found inside the Video Safe application was taken based upon
the photo's time and date stamp. Mark Johnson, the State's computer forensic analyst,
explained that Video Safe was an application designed to allow the user to hide photos
and films. He explained that a person using Video Safe can either take a photo within the
application or import a photo from their cell phone into the application. Johnson testified
that whether a photo was taken within the Video Safe application or taken on an iPhone
and then imported into the application, a person using the Video Safe application on an
iPhone would be using the iPhone's hardware to take the photo; further, the iPhone
hardware generally records certain information like the time and date a photo was taken.

19

But, when a photo is taken within the Video Safe application or later imported into
the Video Safe application, the application strips the time and date information
generated by the iPhone hardware from the photo. Johnson continued to explain,
however, that regardless of whether a photo was taken within the Video Safe application
or imported into the Video Safe application, the Video Safe application had its own
software that would record a time and date once "tak[ing] notice of the [photo]." That is,
Johnson testified that the Video Safe application software would generate its own time
and date information for a photo based upon the time and date the photo was either taken
within the application or imported into the application. Nevertheless, Johnson explained
there was no way to tell from the Video Safe time and date information whether a photo
was taken within the application or imported into the application.

Accordingly, Umphenour's argument that the prosecutor misstated the facts hinges
on his contention that the prosecutor could not have known whether the photos shown in
State's Exhibits 41 and 42 were taken within the Video Safe application at 1:47 a.m. and
1:53 a.m. or imported into the Video Safe application at 1:47 a.m. and 1:53 a.m. Thus,
when the prosecutor stated that the photos were taken at 1:47 a.m. and 1:53 a.m.,
Umphenour asserts that the prosecutor mischaracterized the evidence in a manner that
unfairly supported K.B.U.'s testimony. Umphenour asserts that the prosecutor's
statements were also prejudicial because it bolstered the weight of the photos as evidence.

The State responds that the prosecutor was simply making a reasonable inference
from the evidence presented at Umphenour's trial. The State emphasizes that although
Johnson testified that there was no way to determine whether a photo was taken within
the Video Safe application or imported into the Video Safe application, the application
did record its own time and date information once it took notice of a photo. Thus, the
State alleges that there was a basis in fact for the prosecutor's statements about the photos
potentially being taken at 1:47 a.m. and 1:53 a.m. Alternatively, the State argues that any
error committed by the prosecutor was harmless because of the following reasons: (1)
20

the statements were addressed by a jury instruction stating that comments by counsel
were not evidence; (2) the statements were fully challenged by defense counsel during
Umphenour's closing arguments; and (3) the statements were a very minute part of the
trial when considering the trial as a whole.

Here, the State's arguments are more persuasive than Umphenour's arguments
because (1) the prosecutor was not commenting about or misstating facts within the
evidence and (2) the prosecutor was making a reasonable inference based upon the
evidence. Although Umphenour correctly asserts that the prosecutor used the word
"taken" as opposed to the word "imported" when referring to the time and date stamps on
the photos, the prosecutor could reasonably infer that Umphenour had "taken" the photos.

To begin with, it is important to emphasize that according to Johnson's testimony
about how the Video Safe application records time and date information, the photos were
either taken within the application or imported to the application on September 29, 2012,
at 1:47 a.m. and 1:53 a.m.; thus, this is a fact in evidence. As a result, despite
Umphenour's contention to the contrary, there was evidence presented at his trial
supporting that the photos could have been "taken" on September 29, 2012, at 1:47 a.m.
and 1:53 a.m. Next, during closing arguments, the prosecutor directed the jury to the
photos shown in State's Exhibits 41 and 42 in the context of K.B.U.'s allegations. Again,
the prosecutor noted the time and date stamps on the photos while also pointing out that
the time and date stamps were consistent with K.B.U.'s allegations—(1) that the sexual
molestation occurred while her mother and sister were out getting breakfast after
homecoming and (2) that the sexual molestation lasted about 10 minutes. The prosecutor
also reminded the jury that homecoming was on the evening of September 28, 2012.

Accordingly, when viewed in context, the prosecutor was clearly making a
reasonable inference based upon the facts in evidence. Highly summarized, the
prosecutor asserted that because K.B.U. alleged she was sexually molested by
21

Umphenour after homecoming while her mother and sister were at IHOP, and this sexual
molestation included a period where Umphenour was using his cell phone for light, the
jury could reasonably conclude that the photos of the female genitals, which were found
in back up Video Safe files of Umphenour's iPhone 4s, were taken by Umphenour on
September 29, 2012, at 1:47 a.m. and 1:53 a.m. as indicated on the Video Safe time and
date stamps. The prosecutor was merely directing the jury to K.B.U.'s allegations and the
time and date stamps and summarizing the conclusions that he believed could be drawn
from this evidence, which was within his wide discretion and latitude as a prosecutor.

Moreover, even if the prosecutor's comments were improper, there is no
reasonable possibility that the improper comments contributed to the verdict. First, as the
State has noted in its brief, the trial court provided the jury with an instruction that both
the prosecutor's and Umphenour's attorney's statements were not considered facts in
evidence. Second, the jury was fully aware of Umphenour's complaints about the time
and date stamps from the Video Safe application. During closing arguments,
Umphenour's attorney challenged the prosecutor's comments by stressing to the jury that
Johnson had testified that he could not say when the photos within the Video Safe
application were taken. Umphenour's attorney encouraged the jury to review Johnson's
testimony. Thus, the jury knew about the time and date stamp dispute, but the jury found
Umphenour guilty of the four counts of sexual exploitation of a child anyway. Third, and
perhaps most importantly, the nature of Umphenour's complaint establishes its
harmlessness.

Again, Umphenour's argument is that because Johnson testified that it was
impossible to tell if a person had "taken" a photo within the Video Safe application or
"imported" a photo into the Video Safe application, the prosecutor erred when he stated
that the photos were "taken" on September 29, 2012, at 1:47 a.m. and 1:53 a.m. Yet, if
the photos were not taken within the Video Safe application on September 29, 2012, at
1:47 a.m. and 1:53 a.m., then the photos were imported into the Video Safe application
22

on September 29, 2012, at 1:47 a.m. and 1:53 a.m. Therefore, the best case scenario for
Umphenour is that the photos had been imported onto his iPhone 4s on September 29,
2012, at 1:47 a.m. and 1:53 a.m. Simply put, given the timing of this import, the
distinction is irrelevant. Either way, Umphenour had access to the photos no later than
September 29, 2012, at 1:47 a.m. and 1:53 a.m.

As a result, it is readily apparent that had the prosecutor stated that the photos
were "taken" or "imported" on September 29, 2012, at 1:47 a.m. and 1:53 a.m., the jury's
verdicts would have remained the same. And in any event, our Supreme Court has held
that minor misstatements of fact "uttered amongst thousands of pages of transcript, was
not prejudicial to [a defendant's] right to a fair trial." State v. Robinson, 303 Kan. 11, 262,
363 P.3d 875 (2015), disapproved of on other grounds by State v. Cheever, 306 Kan. 760,
402 P.3d 1126 (2017).

In conclusion, the prosecutor did not commit error during closing arguments by
stating that the photos depicted in State's Exhibits 41 and 42 were taken on September 29,
2012, at 1:47 a.m. and 1:53 a.m. This was a reasonable factual inference given the
evidence. Moreover, even if the prosecutor committed error, the State has established
beyond a reasonable doubt that the jury's verdicts would not have been different but for
the prosecutor's statement about the photos.

Did the Trial Court Err by Denying Umphenour's Departure Motion?

Umphenour's third argument involves whether the trial court erred by denying his
departure motion. He argues that the trial court should have granted his departure request
to sentence him on the KSGA grid, plus a further departure of one-half his presumptive
grid sentence, for his four Jessica's Law offenses in accordance with K.S.A. 2017 Supp.
21-6627(d).

23

Under K.S.A. 2017 Supp. 21-6627(a), the mandatory minimum for Jessica's Law
offenses is 25 years to life. Under K.S.A. 2017 Supp. 21-6627(d)(1), however, a judge
may sentence a first-time Jessica's Law offender to a lesser sentence, if the "judge finds
substantial and compelling reasons, following a review of mitigating circumstances, to
impose a departure." "Mitigating circumstances" include a defendant's lack of criminal
history. K.S.A. 2017 Supp. 21-6627(d)(2)(A).

In State v. Jolly, 301 Kan. 313, Syl. ¶ 5, 342 P.3d 935 (2015), our Supreme Court
explained that when considering a Jessica's Law departure motion, courts should follow a
two-part statutory method:

"[T]he sentencing court first . . . review[s] the mitigating circumstances without any
attempt to weigh them against any aggravating circumstances. Then, in considering the
facts of the case, the court determines whether the mitigating circumstances rise to the
level of substantial and compelling reasons to depart from the otherwise mandatory
sentence. Finally, if substantial and compelling reasons are found for a departure to a
sentence within the appropriate sentencing guidelines, the sentencing court must state on
the record those substantial and compelling reasons."

"'[S]ubstantial' in this context as something that is real, not imagined, something with
substance and not ephemeral; the term 'compelling' implies that the court is forced, by the
facts of a case, to leave the status quo or go beyond what is ordinary." 301 Kan. 313, Syl.
¶ 9. Furthermore, "even though mitigating circumstances must be present for a finding of
substantial and compelling reasons, mitigating circumstances do not necessarily equal
substantial and compelling reasons." 301 Kan. at 323.

When reviewing the trial court's denial of a motion to depart to the KSGA grid for
a Jessica's Law conviction, appellate courts consider whether the trial court abused its
discretion. An abuse of discretion occurs if the trial court made an error of law, made an
24

error of fact, or acted in an arbitrary, fanciful, or unreasonable manner. State v. Randolph,
297 Kan. 320, 336, 301 P.3d 300 (2013).

In his brief, Umphenour does not argue that the trial court made an error of law or
an error of fact. Instead, Umphenour's sole argument regarding the denial of his departure
motion is that the trial court's denial was "unreasonable" given his "individual
circumstances." The specific individual circumstances that Umphenour emphasizes are
his arguments about his lack of criminal history, his good employment record, and his
"relationship with his children." Without citing any place in the record on appeal,
Umphenour also asserts that he "demonstrat[ed] that he [did] not pose [an] additional
threat to the community." Umphenour concludes that these reasons to depart were so
substantial and compelling that this court must vacate his sentence and remand for
resentencing.

The State responds that Umphenour's argument is meritless by stressing that the
trial court's reasons for denying Umphenour's departure motion were proper. The State
further responds that Umphenour's argument is meritless by pointing to cases where this
court upheld the denial of Jessica's Law departure motions under similar factual
circumstances. Clearly, the State's arguments are correct.

When the trial court denied Umphenour's departure motion, it explained:

"Well, the Court has heard two weeks of evidence. The Court heard motions. The
Court heard about everything it can hear. The Court had letters from people who support
you, and a letter from people who don't support you. The Court reviewed in particular the
facts of this matter. The Court has looked at your motion for a departure and the reasons,
and specifically outlined you've had a good work history, you've supported your family,
you didn't have a criminal history, and you have the support of your family in this matter.
If that were the only things that the Court would consider perhaps that would be
substantial and compelling. But in this particular case the Court also heard the evidence
25

of the young lady as she testified when she's molested at the age of 11 years, and then
pictures were taken of her private area during that same assault. You asked, and everyone
asked [the Court] to disregard that, and [the Court] cannot. The Court has considered all
of those factors. The Court has considered the law behind it.
"Jessica's Law deals with offenders who are over the age of 18 and a child who is
under the age of . . . 14 . . . , and the purpose of that was to make sure that offenders who
are convicted of that have a substantial penalty. Otherwise the legislature who establishes
all of these penalties, it wouldn't have mattered to them. Obviously it was of great
concern to them and that's why they did such.
"Your letters and everything only want you to address your feelings. Certainly
the supporters of you have a belief that the other individuals are the spawn of the devil
and that they did all of this to put you in a bad place. But the Court looked at the evidence
and the evidence was uncontroverted. So when we talk about that, we don't just listen to
what you said, but we look at the whole thing, and that's my job is to look at the entire
picture.
"The Court finds that all requirements necessary for sentencing have been met."

Thus, to summarize, the trial court first considered Umphenour's proposed
mitigating factors—his good work history, his past efforts to support his family
financially, his lack of criminal history, and his current family support. Next, the trial
court considered those proposed mitigating factors in light of the specific facts of
Umphenour's case—K.B.U. was a very young victim, K.B.U. was assaulted and
photographed, and the evidence at Umphenour's trial was uncontroverted. The trial court
then found that when considering the preceding, Umphenour's provided mitigating
factors were neither substantial nor compelling.

When considering the trial court's findings all together, the trial court's decision
was plainly reasonable. Indeed, this conclusion seems particularly reasonable when one
considers that although Umphenour was a first-time Jessica's Law offender, he was
charged and convicted of violating four Jessica's Law offenses. Umphenour was nearly
40 years old when he committed these crimes. Additionally, as M.B.U.'s and K.B.U.'s
26

adoptive father, Umphenour abused his position of trust with these young victims.
Although courts cannot weigh mitigating factors against aggravating factors, courts
should consider the specific facts of the defendant's case, especially any egregious facts
like the age of the victims and the relationship between the victims and the defendant,
when determining whether the defendant's mitigating factors are substantial and
compelling. Jolly, 301 Kan. at 324.

Moreover, as noted by the State in its brief, other courts have approved of the trial
court's denial of Jessica's Law departure motions when the offender made similar
arguments. For instance, in State v. Willis, 51 Kan. App. 2d 971, 997, 358 P.3d 107
(2015), this court affirmed the denial of Willis' departure motion in which he argued he
was entitled to a departure to the KSGA grid and a further departure to half his
presumptive grid sentence because he had no criminal history, he had family who said he
was a good father, he had strong family support, and he had previously "helped others [as
a] day-care provider, and a city worker." The trial court denied the motion after
considering the mitigating factors in light of the specific crimes Willis had committed—
aggravated indecent liberties with his stepdaughter, aggravated criminal sodomy of his
stepdaughter, and attempted rape of his stepdaughter. This court then affirmed the denial
of Willis' departure motion as reasonable because the trial "court carefully considered the
proposed mitigating factors and found that they did not justify a departure from the
statutorily prescribed sentence." 51 Kan. App. 2d at 998.

This case is no different than Willis. The trial court carefully considered
Umphenour's arguments concerning why he was entitled to a departure. Nevertheless, it
determined that those mitigating factors were not substantial and compelling when it
considered the specific facts of his case. As a result, the trial court acted reasonably when
it denied Umphenour's departure motion, and we affirm.


27

Did the Trial Court Err by Imposing Lifetime Postrelease Supervision?

Umphenour's final argument is that his sentence of lifetime postrelease supervision
for his four off-grid convictions, that is, his conviction for aggravated indecent liberties
with a child, his conviction for aggravated criminal sodomy, and his two convictions for
sexual exploitation of a child under K.S.A. 2012 Supp. 21-5510(a)(1), is illegal because
these off-grid sentences require him to serve lifetime parole. Citing Supreme Court
precedent, the State agrees that the trial court should not have imposed lifetime
postrelease supervision.

"Whether a sentence is illegal is an issue of statutory interpretation, which is a
question of law subject to unlimited review." State v. Harsh, 293 Kan. 585, 588, 265 P.3d
1161 (2011).

In Harsh, our Supreme Court explained that lifetime postrelease supervision and
lifetime parole are different. Under K.S.A. 2017 Supp. 22-3717(u), defendants convicted
of an off-grid Jessica's Law offense could become parole eligible after serving the
minimum mandatory term of their life sentence. Thus, the Harsh court held that
imposition of lifetime postrelease supervision for Jessica's Law offenses was illegal. 293
Kan. at 589-90. Yet, because parole is separate and distinct from a defendant's sentence,
the Harsh court held that the proper remedy when a trial court errantly imposes lifetime
postrelease supervision in such situations is to simply vacate the imposition of lifetime
postrelease supervision. 293 Kan. at 590.

Thus, although Umphenour asks this court to remand for resentencing, this we
need not do. Instead, we simply vacate the trial court's imposition of lifetime postrelease
supervision for Umphenour's four off-grid Jessica's Law convictions.

28

Yet, it is important to note that the trial court also imposed lifetime postrelease
supervision for Umphenour's two convictions of sexual exploitation of a child under
K.S.A. 2012 Supp. 21-5510(a)(2). Sexual exploitation of a child is a "sexually violent
crime" as meant under K.S.A. 2017 Supp. 22-3717(d)(1)(G) and (d)(2)(H). Furthermore,
defendants may have to serve both lifetime parole and lifetime postrelease supervision.
See, e.g., State v. Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014) (where our
Supreme Court recognized that defendants could serve both lifetime parole and
postrelease supervision). In any event, Umphenour has not challenged the trial court's
imposition of lifetime postrelease supervision for his sexual exploitation of a child under
K.S.A. 2012 Supp. 21-5510(a)(2) as illegal. Accordingly, even though we vacate the trial
court's imposition of lifetime postrelease supervision as to Umphenour's four off-grid
Jessica's Law offenses, we also point out that should Umphenour ever be released from
prison, Umphenour's convictions for sexual exploitation of a child under K.S.A. 2012
Supp. 21-5510(a)(2) still require him to serve lifetime postrelease supervision.

Affirmed in part and vacated in part.