Walker v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 118,171

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOSHUA MICHAEL WALKER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed November 2,
2018. Affirmed in part and dismissed in part.

Michael Jilka, of Nichols Jilka LLP, of Lawrence, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., PIERRON and MALONE, JJ.

PER CURIAM: Because his counsel improperly limited his prior direct appeal to
sentencing issues, Joshua M. Walker, convicted of rape and aggravated criminal sodomy
of his five-year-old daughter, raises three trial issues in this appeal. Walker claims
prosecutorial error when the prosecutor misstated the law during closing arguments. He
argues the trial court erred when it allowed the victim to testify via closed circuit
television. Finally, he asserts that it was reversible error for the court to submit the
question of his age to the jury instead of including that issue as an element of the crime.
We find the claimed errors are not grounds for reversal and affirm his convictions.
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Walker also tacks on an issue concerning the court's refusal to grant his sentence
departure motion. Since this court has previously decided this issue against him in his
first direct appeal, the "law of the case" doctrine requires us to dismiss that portion of his
appeal.

Walker forces his daughter to engage in sexual acts.

Walker and his daughter, K.W., lived with Walker's stepmother Debra and his
father from the time that K.W. was 11 months old until Walker met Lori. But often
Walker moved K.W. back to his parents' house when he had a problem with Lori. Around
August to October 2010, Debra noticed when Walker came to pick up K.W., K.W. would
get upset and did not want to go with him. K.W. threw fits and screamed. She ran from
Walker and hid. She "ran from the house screaming bloody murder." She broke out with
acute eczema blisters and sores all over her body, which were brought on by stress. K.W.
was in kindergarten at this time.

In November 2010, five-year-old K.W. disclosed to her stepmother, Lori, that
Walker, "made her take medicine out of a spoon that was in his pants." K.W. reported
that Walker placed her "in a couple of different positions, one laying on her back with her
feet up by her head, and the other one with her on her knees" and that "he put his privates
on her bottom and made her scream." She demonstrated the positions and said that
"Daddy's spoon" was "yucky." They heard Walker's car pull up and K.W. stopped
talking.

Lori confronted Walker and he "immediately started crying" and told Lori that he
"didn't do it" and begged her to believe him. K.W. then walked into the room and asked
why Walker was crying. Walker looked at her and said, "Daddy wouldn't hurt you.
Daddy didn't do this." K.W. repeated, "Daddy didn't do this." K.W. then left the room.
Lori followed and asked K.W. why she would say he did those things if he did not do
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them. K.W. told Lori, "Mommy, I'm sorry, but he did do this." Lori did not report K.W.'s
disclosure.

In June 2011, Debra observed that K.W. did not want to be alone with her father.
One day that month, Lori saw K.W. kneeling on her bed facing her younger brother,
T.W., who was standing. Then, K.W. reached up and pulled down T.W.'s shorts and his
boxers, held his penis, and was "getting ready to put it in her mouth." Lori separated the
children and asked K.W. why she would do that. In response, K.W. told her, "That's what
Daddy makes me do." K.W. again told Lori that Walker placed her in the same positions
she demonstrated previously, fed her "medicine from the spoon in his pants," and he "put
[his pee pee] on her bottom and made her scream." K.W. also said that he told her not to
bite the spoon. She said it happened on a day that she had misbehaved at school.

Lori told Debra about the accusations. Lori also told her father, who called the
police. After speaking to Lori, Debra asked K.W. if anyone had touched her on her
private parts. K.W. said "No." "Except for my daddy." K.W. said that Walker "had been
giving her medicine from the spoon in his pants." She said that he had put it in her mouth
and in her front. She pointed to her front and to her bottom. She said that it was painful, it
made her cry, and the hair made her gag.

Debra and her husband told Walker that he had to leave their house and that K.W.
would stay with them. K.W.'s behavior issues began to escalate after that. K.W. would
not sleep at night, fearing that Walker would come back. K.W. said she never wanted to
see Walker again.

On July 7, 2011, a social worker for SRS, Lindsay Bishop, interviewed K.W.
using the "Finding Words" method. K.W. told her that Walker put his privates inside of
her bottom, inside of her privates, and inside of her mouth. She said it happened at Lori's
house. She said it "hurted." This occurred "every day when I was with my daddy." She
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said she saw Walker's privates "ten times" and then said "six times." Her daddy's privates
were long like an "elephant trunk." She said, "Every time he puts his privates in my
mouth, I felt hair going in my mouth." She said he "was choking me with it."

On July 8, 2011, Sergeant Tom Willis interviewed Walker. Walker denied abusing
K.W. But he believed that someone sexually abused her and then admitted that he
possibly abused her "subconsciously."

The Charges Come to Trial.

The State charged Walker with rape and two counts of aggravated criminal
sodomy. The State moved under K.S.A. 22-3434 for K.W. to testify outside the presence
of Walker. Walker opposed the motion, but the court granted it.

When the case proceeded to a jury trial, Walker renewed his objection to K.W.
testifying via closed-circuit television. The court overruled the objection. K.W. testified
via closed-circuit television that Walker had placed the "privates that boys have" on her
"privates" between her legs, her bottom, and her mouth. She testified that he touched his
privates on her mouth one time.

Lori, Debra, and Bishop testified concerning K.W.'s disclosures of sexual abuse to
them. A video of K.W.'s interview with Bishop was played for the jury.

Christine Juliano, a clinical psychotherapist, testified that K.W. told her that
Walker touched her in her bottom with "his private" and he would "put his private in my
mouth." He did those things "[a] lot of times." She said, "One time he touched me in the
front with his private." She said it happened at Lori's house. She thought she was in
kindergarten when he started touching her. Juliano also testified that K.W.'s grandparent's
reported to her that K.W. had been "masturbating to the point of rubbing herself raw."
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Officer Willis testified about his interview of Walker. A video of the interview
was also played for the jury.

LeChelle Williams, a pediatric nurse practitioner at Children's Mercy, testified that
she examined K.W. and found no physical signs of injury to K.W.'s vagina or anus. She
explained that this is normal in cases of sexual contact. The tissue stretches, and it heals
quickly and completely. It is rare to see physical signs of injury even when an adult
penetrates a young child.

The defense called Dr. Mark DeRoo. Dr. DeRoo performed a physical on K.W. in
January 2011 and found nothing unusual with regard to her genitals. The defense called
an expert, Kathie Nichols, who testified the "Finding Words" protocol was suspect.

Walker testified. He denied sexually abusing his daughter. But he again admitted
that it was possible he could have done it subconsciously or when he was not in his right
mind.

The jury convicted Walker of rape and two counts of aggravated criminal sodomy.
Walker filed a motion for a new trial alleging, among other things, that the court erred by
granting the State's motion to take K.W.'s testimony outside of his presence. The court
denied the motion. On July 27, 2012, Walker was sentenced to life in prison with no
possibility of parole for 25 years.

A Prior Appeal Resolves a Sentencing Issue.

Walker's counsel filed a notice of appeal stating that Walker appealed from his
"sentencing." In that appeal, Walker raised four trial errors and one sentencing issue. This
court held that it did not have jurisdiction to consider the trial errors because Walker only
gave notice to appeal his sentence. But the court did consider Walker's argument that the
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district court abused its discretion by denying his downward departure motion. The panel
found no abuse of discretion. See State v. Walker, 50 Kan. App. 2d 900, 334 P.3d 901
(2014).

Walker now contends the district court erred by denying his departure motion. But
this issue was already decided against him in his original direct appeal. He was only
precluded from raising trial errors in the previous appeal. The court considered Walker's
sentencing argument, found no error, and affirmed his sentences. See 50 Kan. App. 2d at
905-06. The principle of "law of the case" precludes this court from reconsidering
Walker's sentencing issue. See State v. Collier, 263 Kan. 629, Syl. ¶ 3, 952 P.2d 1326
(1998). Collier held that when a second appeal is brought to this court in the same case,
the first decision is the settled law of the case on all questions involved in the first appeal,
and reconsideration will not normally be given to such questions. This issue is dismissed.

Walker Obtains Habeas Corpus Relief.

Walker filed a K.S.A. 60-1507 motion alleging ineffective assistance of counsel.
He alleged that his trial counsel was ineffective for, among other things, filing the limited
notice of appeal. The district court agreed that Walker's trial attorney was ineffective by
filing the limited notice of appeal and granted Walker the right to file a direct appeal out-
of-time. The court denied Walker's ineffective assistance of counsel claims unrelated to
the notice of appeal. The State did not appeal the district court's order granting Walker an
out-of-time direct appeal.

Walker filed a notice of appeal in the K.S.A. 60-1507 proceeding, appealing his
conviction, sentence, and all rulings made by the court. He raised four issues from the
original direct appeal, and one issue of ineffective assistance of counsel he raised in the
K.S.A. 60-1507 proceeding. Because Kansas law does not allow an accused to have a
direct appeal and a K.S.A. 60-1507 motion pending at the same time, this court issued an
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order for Walker to choose to proceed as a direct appeal or to proceed as an appeal of any
adverse rulings in the K.S.A. 60-1507 proceeding. Walker elected to proceed as a direct
appeal from his conviction. Therefore, Walker's final issue regarding ineffective
assistance of counsel will not be considered by this court.

We find no reversible error arising from the prosecutor's closing arguments.

Even though Walker did not object to the prosecutorial comments he complains
about, we will consider the issue because such a claim is reviewable on appeal even in
the absence of a contemporaneous objection. State v. Tahah, 302 Kan. 783, 787, 358 P.3d
819 (2015).

A new framework for evaluating challenges based on the behavior of prosecutors
has been established by our Supreme Court in State v. Sherman, 305 Kan. 88, 378 P.3d
1060 (2016). In Sherman, the court replaced the term "prosecutorial misconduct" with the
term "prosecutorial error." The court dispensed with the practice of factoring a
prosecutor's ill will or gross misconduct into the prejudice analysis. The Sherman
framework focuses on the defendant's right to receive a fair trial. State v. Kahler, 307
Kan. 374, 410 P.3d 105 (2018). We hold that Sherman applies here.

Here is the Sherman framework:

"In analyzing claims of prosecutorial error, appellate courts will employ a two-step
process, first determining whether error occurred and, if it did, then determining whether
prejudice resulted. 305 Kan. 88, Syl. ¶ 6. Under the first step, we will continue to analyze
whether the prosecutor's statements '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.' 305 Kan. 88, Syl. ¶ 7. At the
second stage of the analysis, rather than step through the three Tosh factors, the prejudice
analysis will focus on whether the error prejudiced the defendant's due process rights to a
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fair trial; if a due process violation occurs, prejudice will be assessed by applying the
Chapman constitutional error standard. 305 Kan. 88, Syl. ¶ 8. Under that standard,
'[p]rosecutorial error is harmless if the State proves beyond a reasonable doubt that the
error complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable possibility that the error contributed to the
verdict.'" State v. Kleypas, 305 Kan. 224, 315-16, 382 P.3d 373 (2016), cert. denied 137
S. Ct. 1381 (2017).

Following the new framework, we examine the question of jury unanimity.

Walker contends that the prosecutor misstated the law on jury unanimity and
multiple acts. Misstating the law is not within the wide latitude given to prosecutors in
closing arguments. A prosecutor crosses the line by misstating the law. State v. Raskie,
293 Kan. 906, 917, 269 P.3d 1268 (2012). And a defendant is denied a fair trial when a
prosecutor misstates the law and the facts are such that the jury could have been confused
or misled by the statement. State v. Hall, 292 Kan. 841, 849, 257 P.3d 272 (2011).

"A jury unanimity issue arises where the jurors have heard evidence that the
defendant committed multiple acts, any one of which could support a conviction on a
single count in the charging document, because a jury must be unanimous as to the
particular act that is the basis for a conviction." State v. Moyer, 306 Kan. 342, Syl. ¶ 6,
410 P.3d 71 (2017).

Walker cites the following statements by the prosecutor as misstatements of the
law:

"What you all have to do is you have to say together we agree that the defendant
put his penis in her vagina at least one time. We all agree together that it was at least one
time during that time period. You don't have to find a specific date.
"And as to Count 2 on the oral sodomy, of course, she's been very clear that there
was oral contact or oral penetration, so that is just charged as it is. And, again, you have
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to find that at least one time in that time period that he placed his penis in her mouth.
And you all agree together that it happened on at least one occasion.
. . . .
"You again, on the anal sodomy, have the same unanimity instruction, where we
all agree together it happened at least once during that time frame. Don't have to pick a
date, just we all agree it happened at least once." (Emphasis added.)

Walker relies on State v. Wells, 296 Kan. 65, 290 P.3d 590 (2012). In Wells, the
prosecutor charged the defendant with two counts of rape and two counts of sodomy
occurring sometime between August 2006 and July 2007. The alleged crimes occurred on
multiple occasions. The victim could not give specific dates. The district court gave a
unanimity instruction. During closing arguments, the prosecutor told the jurors that they
had to unanimously agree that a rape occurred "at least once" and then "at least a second
time." Our Supreme Court found that the prosecutor's comments "misconstrued the
meaning of the unanimity instruction because the statements conveyed to the jury that it
could find Wells guilty of both rape counts without unanimously agreeing on the
underlying act constituting each rape count." 296 Kan. at 79. The court found the
prosecutor misstated the law. 296 Kan. at 79. But the error was harmless. 296 Kan. at 82.

Here, a fair reading of Wells leads us to conclude that the prosecutor erred. The
question then becomes whether that error is harmless beyond a reasonable doubt.
Caselaw indicates it is.

The cases where courts have failed to instruct on unanimity are helpful on this
point. In State v. Voyles, 284 Kan. 239, 240, 244, 160 P.3d 794 (2007), there was
testimony that potentially 20 different acts or offenses were committed, but the defendant
was charged with eight counts for conduct involving two girls—four counts of
aggravated indecent solicitation of a child and four counts of aggravated criminal
sodomy. The State failed to elect which of the several acts it relied on to constitute each
count, and the court failed to give a unanimity instruction. The evidence showed a
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number of factually separate incidents at different locations apparently on different days.
There was no unified defense. The court found a real possibility that the jury would have
reached a different verdict if a unanimity instruction had been given. The court
distinguished the case from one involving "generic evidence," i.e. multiple
indistinguishable acts of sexual abuse of young children. 284 Kan. at 255.

In contrast, in State v. Arculeo, 29 Kan. App. 2d 962, 975-76, 36 P.3d 305 (2001),
this court found the failure to give a unanimity instruction harmless error when multiple
acts of sexual abuse over a long period of time were described. The victim's description
of the abuse

"offered no distinguishing characteristics identifying any separate and distinct incidents
of abuse. Rather the abuse 'result[ed] in an amalgamation of the crimes in the child's
mind'; thus, 'the child's testimony [was] reduced to a general, and customarily
abbreviated, recitation of what happened on a continuing basis.' [Citation omitted.]" 29
Kan. App. 2d at 974.

The sole issue was credibility. The child gave specific evidence of the sexual acts so that
the jury could conclude that it came from personal experience. The defendant was
charged with only one count of aggravated criminal sodomy and one count of aggravated
indecent liberties with a child. The evidence was such that there was no possibility of jury
disagreement regarding the defendant's commission of any of the acts. 29 Kan. App. 2d at
975; see State v. Johnson, No. 107,524, 2013 WL 2321167, at *2-4 (Kan. App. 2013)
(unpublished opinion).

Here, the State charged one act of rape, one act of oral sodomy, and one act of anal
sodomy. The timeframe the jurors were given on each count was between August 1, 2010
and May 31, 2011. K.W. could distinguish that there were three sex acts performed (rape,
oral sodomy, anal sodomy), but she could not factually distinguish separate incidents
within each category. She said that the abuse happened at Lori's house while Lori was at
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work. She made references to being in kindergarten when the abuse happened. There was
some inconsistency regarding how many times each sex act occurred. She told Bishop the
acts occurred "every day when I was with my daddy." She said she saw Walker's privates
"ten times" and then said "six times." She told Juliano that he touched her on her bottom
with his private and put it in her mouth "[a] lot of times." She said "one time" he touched
her in the front with his private. She testified that he touched his privates on her mouth
one time.

K.W. gave specific information that could have only come from personal
experience, so the jurors could reasonably conclude that she was forced to endure all
three sex acts. But, unlike in Voyles, there was no reasonable possibility that some jurors
found a particular act of rape occurred on a particular day, while other jurors found a
different rape on a different day. This case is like Arculeo. The abuse resulted in an
amalgamation of the crimes in K.W.'s mind. There simply was not the kind of evidence
in the record to distinguish between separate incidents of rape, or to distinguish between
separate incidents of oral sodomy. The defense was a complete denial. The issue was
K.W.'s credibility.

The prosecution's case was strong. K.W. gave details that a five-year-old child
could not know and could not learn from walking in on her parents having sex or viewing
pornography—the hair in her mouth, that he told her not to bite the "spoon," that it felt
like he was choking her, and that it "hurted." Also, during the timeframe when the crimes
occurred, her behavior changed. She did not want to go with her father when he came to
pick her up and she ran away from him screaming. K.W. consistently and exclusively
identified her father. When asked by Bishop whether anyone else had touched her
privates, she was clear: "Not Uncle John, not Uncle Mike and not papaw [her
grandfather] but only my dad." And Walker admitted it was "possible" he committed
these crimes "subconsciously."

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Additionally, the court did give a unanimity instruction. On each count, the court
instructed the jury that the State claimed distinct multiple acts, each of which could
separately constitute the crime, and the jury must unanimously agree on the same
underlying act. And defense counsel told the jurors that they must unanimously find
"what act, on what day."

We hold that the State has shown beyond a reasonable doubt that the prosecutor's
comments did not affect the outcome of the trial in light of the entire record. There is no
reasonable possibility that the error contributed to the verdict.

Next, we examine the prosecutor's comments.

Walker contends the prosecutor improperly bolstered K.W.'s credibility by stating:
"But when you take all this evidence together, you will see that this evidence has proven
beyond a reasonable doubt that [K.W.] can be believed in what she is saying and what
she has been saying to people." (Emphasis added.)

It is well settled that it is improper for a prosecutor to attempt to bolster the
credibility of a State witness. State v. Donaldson, 279 Kan. 694, 708, 112 P.3d 99 (2005).
Prosecutors may not offer their personal opinions on the credibility of witnesses. State v.
Pabst, 268 Kan. 501, 506-07, 996 P.2d 321 (2000). The reason is that expressions of
personal opinion by a prosecutor are a form of unsworn and unchecked testimony. State
v. Hall, 292 Kan. 841, 852, 257 P.3d 272 (2011). The jury must be left to draw the
ultimate conclusion on witness credibility. State v. Hart, 297 Kan. 494, 505-06, 301 P.3d
1279 (2013).

Prosecutors, however, have wide latitude to tell the jury what to look for to assess
witness credibility and to ask the jury to draw reasonable inferences from the evidence.
State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011); State v. McReynolds, 288
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Kan. 318, 325, 202 P.3d 658 (2009). The prosecutor's comments must be viewed in
context, not in isolation. State v. Stone, 291 Kan. 13, 19-20, 237 P.3d 1229 (2010).

A helpful case is found in State v. Davis, 275 Kan. 107, 122, 61 P.3d 701 (2003),
where the court held that the prosecutor's statement "the evidence has shown that [S.K.F.]
should be believed by you and that you should return verdict on all of those counts" did
not constitute vouching for S.K.F.'s credibility. (Emphasis added.) The prosecutor merely
made a reasonable inference based on the evidence. 275 Kan. at 122.

Later then, in State v. Williams, 299 Kan. 911, 329 P.3d 400 (2014), the prosecutor
told the jurors to evaluate the credibility of the witnesses. The prosecutor pointed out
specific evidence that boosted the credibility of the victim—the consistency of the
victim's statements and the evidence that corroborated the victim's version of events.
Then the prosecutor asked, "Doesn't that make her . . . credible?" In context, the court
found the statement not outside the wide latitude afforded prosecutors in discussing
evidence. 299 Kan. at 937.

With the guidance of those cases, we see that the prosecutor's comments did not
bolster her credibility. The prosecutor's comment here was in the context of responding to
the defense's assertion that there was no corroboration of K.W.'s testimony. Defense
counsel stated, "No corroborating evidence whatsoever. So it literally comes down to
little [K.W.'s] statements." In response, the prosecutor cited the following as
corroboration: K.W.'s attempts to avoid her father by hiding and crying when he came to
pick her up; the consistency in her statements; K.W.'s behavior—rage, tantrums, anxiety,
masturbation, PTSD; her knowledge of sexual acts that a five-year-old should not know;
her attempt to perform a sexual act with her brother; and Walker's own statement that it
was possible he abused her. Right after listing all of the corroboratory evidence, then the
prosecutor made the statement Walker complains about. The prosecutor also told the
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jurors that they were going to have to determine whether K.W.'s statements were
credible.

The prosecutor did not give her personal opinion of K.W.'s credibility. Rather, the
prosecutor directed the jury to the corroboratory evidence. In context, the prosecutor's
comment was not outside of the wide latitude afforded to prosecutors.

We find no burden shifting here.

Walker contends that the prosecutor improperly shifted the burden of proof on
Walker by stating: "Other corroboration? Knowledge of sexual acts that a five-year-old is
not going to know. We still haven't heard where those would come from. One place and
one place only, from the defendant doing these things to her." (Emphasis added.) This
was part of the same discussion as the prior issue.

Without a doubt, it is improper for the prosecutor to attempt to shift the burden of
proof to the defendant. State v. Wilson, 295 Kan. 605, 623-24, 289 P.3d 1082 (2012). But
prosecutors have "considerable latitude" to comment on the weakness of the defense.
Williams, 299 Kan. at 939. In Wilson, the prosecutor commented that the defendant could
not provide an innocent reason why his DNA was found at the murder scene. The court
found the prosecutor was not shifting the burden of proof, but rather pointing out where
the defendant's version of events logically broke down. And, importantly, the prosecutor
told the jury to give whatever weight and credit it could to the defendant's testimony. 295
Kan. at 625.

Here, the prosecutor was not shifting the burden of proof, but rather answering
Walker's argument that there was no corroboration for K.W.'s claims and pointing out
where Walker's defense broke down. The prosecutor also told the jurors that it was their
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job to determine whether K.W.'s statements were credible. The prosecutor's statement
was within the wide latitude afforded prosecutors.

We find no error in how the victim's testimony was presented.

Walker contends that the district court erred by granting the State's motion to
allow K.W. to testify via closed-circuit television. He contends that his right to confront
his accuser under the Sixth Amendment to the United States Constitution was violated.
We disagree.

K.W. testified in the judge's chambers next to the courtroom. Her testimony was
live-streamed in the courtroom. The attorneys and K.W. were in chambers. Walker, the
judge, and the jury were in the courtroom. Walker was permitted to stop the questioning
so that he could confer with his attorney. Walker's attorney thoroughly cross-examined
K.W.

Kansas law permits a trial court to order a child-victim who is under the age of 13
to testify in a room other than the courtroom by closed-circuit television. K.S.A. 22-
3434(a)(1). "The state must establish by clear and convincing evidence that to require the
child who is the alleged victim to testify in open court will so traumatize the child as to
prevent the child from reasonably communicating to the jury or render the child
unavailable to testify." The court must make an individualized finding as such. K.S.A.
22-3434(b).

An important ruling on this point is found in State v. Boyd, 281 Kan. 70, 127 P.3d
998 (2006). The Supreme Court explained how the statute is to be implemented:

"A defendant is not denied the constitutional right to confrontation where a child-
victim witness testifies via closed-circuit television pursuant to K.S.A. 22-3434, provided
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the trial court (1) hears evidence and determines use of the one-way closed circuit
television procedure is necessary to protect the welfare of the particular child witness
who seeks to testify; (2) finds that the child witness would be traumatized, not by the
courtroom generally, but by the presence of the defendant; and (3) finds that the
emotional distress suffered by the child witness in the presence of the defendant is more
than de minimis, i.e., more than mere nervousness or excitement or some reluctance to
testify." 281 Kan. 70, Syl. ¶ 8.

The court heard evidence in support of the motion from K.W.'s therapist and her
grandmother. Juliano testified that K.W. had ADHD, PTSD, and adjustment disorder
with anxiety. When Juliano first saw K.W., she was having temper tantrums, rages,
yelling, screaming, and would not accept "no." But her behavior improved. Her rages and
tantrums decreased dramatically. That changed after Juliano discussed with K.W. the
prospect of K.W. testifying in court in front of her father. K.W. said that she would be
scared to testify in front of her father; but that she would do it. After this conversation,
though, K.W.'s behavior became more rageful. She became sad and withdrawn. She
became inconsolable—yelling and screaming. She picked at her skin until it bled,
indicating anxiety. Juliano testified that it was her opinion K.W. should not testify in
front of her father. Juliana believed K.W.'s anxiety would increase immensely and she
would withdraw within herself. Juliano was concerned that K.W. would refuse to speak at
all if she saw her father. When Walker challenged K.W. about her initial accusation
saying he did not do it, he slammed a lot of doors, got very angry, and made K.W. scared.

Walker's stepmother, Debra Walker, testified that when K.W. was living with her
in the summer of 2010 and Walker came to pick her up, she would cry and scream and
not want to leave with him. She developed acute eczema from stress and was constantly
picking scabs on her body. After Walker was gone, she was scared of going to sleep at
night, afraid that Walker would come back and take her. K.W. saw a picture of her father
and said, "I don't want to see him." She wanted to cut up the picture. She started acting
out and got very angry—throwing, kicking, fighting, slamming doors, and screaming.
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Debra then brought her to see Juliano. After that, K.W.'s outbursts decreased over time.
She started excelling in school. Her eczema cleared up. Then Debra and Juliano talked
with K.W. about testifying in court. The outbursts and eczema came back and she
stopped focusing at school. Debra believed that K.W. would shut down or become upset
if she had to testify in front of Walker. Debra testified that K.W. does not like to hurt
people and if Walker showed any emotion, K.W. would not talk. Debra cited her previous
encounter with Walker over the allegation.

The trial court made all of the required findings. It ruled that the State presented
clear and convincing testimony that K.W. testifying outside the presence of her father
was necessary to protect her welfare. The court cited K.W.'s statement that she was
scared of her father. The court cited her physical acting out and temper tantrums. The
court found K.W. would suffer "major" emotional distress and "great" trauma testifying
in front of her father, and that it was more than just nervousness or reluctance to testify.
The court found that the emotional distress was not incidental to the stress caused to
anyone by testifying. The court noted her PTSD and other diagnoses. The court noted that
her age was important. The court cited her earlier encounter with her father over the
accusation. The court found there was a strong possibility that K.W. would completely
shut down and not give testimony at all.

The trial court's findings here are supported by substantial competent evidence.
The court followed the correct statutory procedure. We see no error here; Walker's right
to confront his accuser was not violated.

The special jury question was harmless error.

Walker contends the district court committed reversible error by submitting his
age as a special jury question rather than as an element of the crimes. He acknowledges
that he did not raise this issue below. Interestingly, the State did ask for Walker's age to
18

be added as an element to each count. But the court stated that it did not think age was an
element; the court said that it should be on the verdict form instead.

Because Walker did not object to the instructions, this court's review is for clear
error. No party may assign as error the giving or failure to give an instruction unless the
party objects before the jury retires to consider its verdict unless the instruction or the
failure to give an instruction is clearly erroneous. K.S.A. 2017 Supp. 22-3414(3); State v.
Louis, 305 Kan. 453, 457, 384 P.3d 1 (2016). To establish clear error, the defendant must
firmly convince the appellate court that the giving of the instruction would have made a
difference in the verdict. State v. Cooper, 303 Kan. 764, 771, 366 P.3d 232 (2016).

It is undisputed that:

"Where the defendant's age is an essential element of an off-grid crime . . . the
trial court errs when it submits . . . the defendant's age to the jury in a special question on
the verdict form rather than including the element in the jury instruction that enumerates
the elements of the crime." State v. Brown, 298 Kan. 1040, Syl. ¶ 1, 318 P.3d 1005
(2014).

The parties agree the court erred. The State charged Walker with the off-grid forms
of rape and aggravated criminal sodomy, for which an essential element was that Walker
was 18 years or older. See Brown, 298 Kan. at 1045. In Brown, the defendant's age at the
time of the offense is an element of the crime if the State seeks to convict the defendant
of the more serious, off-grid level of the offense. The court here did not instruct the jury
that Walker's age was an element of the crimes. But on the verdict form for each count,
the court submitted a special question asking the jurors whether they "unanimously find
beyond a reasonable doubt that the defendant was 18 years old or older at the time the
offense was committed?" The jury answered yes on each form.

But the error was harmless.
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"Where a jury answers a special question finding that the defendant was age 18
or older when committing the charged crime, and the evidence is sufficient to support
that finding, the trial court's failure to include the defendant's age in the jury instruction
on the elements of the crime is harmless error." Brown, 298 Kan. 1040, Syl. ¶ 2.

Here, Lori testified that Walker's date of birth was December 4, 1984. Walker
testified he was 27 years old at the time of trial. The crimes allegedly occurred between
August 2010 and May 2011. Defense counsel acknowledged that Walker's age was not in
dispute. On the verdict form, the jurors were asked whether they unanimously found
beyond a reasonable doubt that Walker was 18 when the offenses were committed. They
answered yes. The jury would not have reached a different verdict had the instruction
error not occurred.

Walker's convictions are affirmed. His departure motion issue is dismissed.