State v. Brown
| Decision Date | 07 January 2011 |
| Docket Number | No. 100,881.,100,881. |
| Citation | 244 P.3d 267 |
| Parties | STATE of Kansas, Appellee, v. Calvin Ray BROWN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A party who does not object to the admission of testimony regarding a witness' prior consistent statements fails to preserve an argument for appeal regarding a claim that the evidence was prejudicial.
2. A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant's theory.
3. Instructions are clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred.
4. Although voluntary intoxication is not a defense to general intent crimes, a voluntary intoxication defense may be used to negate the intent element of specific intent crimes.
5. Aggravated indecent solicitation under K.S.A. 21-3511(a) is a specific intent crime.
6. Unless evidence is presented that shows intoxication to the extent that a defendant'sability to form the requisite intent was impaired, an instruction on the defense of voluntary intoxication is not required. The defendant has the burden of showing that he or she was so intoxicated that his or her mental faculties were impaired by the consumption of alcohol or drugs.
7. It is fundamental to a fair trial that the accused be afforded the opportunity to present his or her theory of defense. Under the facts of this case, imposing a defense upon a defendant which was arguably inconsistent with the one upon which he completely relied—by providing the jury a defense instruction that neither party requested—would have been akin to denying the defendant the meaningful opportunity to present his chosen theory of defense.
8. Instructing the jury that another trial would be a burden on both sides is error.
9. Conviction of a defendant for the off-grid offense described in K.S.A. 21-3301 and 21-3504 () and imposition of the enhanced sentencing provisions of K.S.A. 21-4643 require a factual finding that the defendant was 18 years of age or older. The fact question must be submitted to the jury and proved beyond a reasonable doubt.
Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Edmond D. Brancart, deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
This is a direct appeal from Calvin Ray Brown's conviction by a jury for one count of attempted aggravated indecent liberties with a child in violation of K.S.A. 21-3301 and K.S.A. 21-3504(a)(3)(A) and one count of aggravated indecent solicitation in violation of K.S.A. 21-3511(a). The trial court sentenced the defendant to a life sentence under K.S.A. 21-4643 ("Jessica's Law"), without the possibility of parole for 25 years, for Count I and 32 months to run concurrent with the primary offense for Count II. Jurisdiction is proper under K.S.A. 22-3601(b)(1).
In autumn 2007, Brown lived with Nakisha H. and her two daughters, M.H. (age 2) and L.H. (age 10). Brown was, at one time, married to Nakisha's mother, and Nakisha had a close relationship with him.
On the night of November 3, 2007, Nakisha went out with her sisters to celebrate a birthday. Brown was babysitting M.H., L.H., and their four male cousins.
The children were on the fold-out sofa bed in the living room, watching television, and Brown stayed downstairs in his room. At some point, L.H. fell asleep while watching T.V. L.H. testified that Brown woke her up by grabbing her arm and taking her downstairs to his room.
L.H. stated that Brown had L.H. sit on his couch and he stood in front of her and said, L.H. testified that Brown was "talking real nasty to me like he wanted to do something with" her. L.H. was scared and ran up the stairs. She got M.H., who was with one of her cousins, and went to her room.
L.H. testified that Brown followed her to her room and said, "[I]f I can't get nothing from you, can I just rub on your butt." He asked her several times and she repeatedly said no.
L.H. then ran around Brown and ran out of the house in her nightclothes, and across the street to her great-grandmother's house. Her great-grandmother, J. Williams, lived across the street along with L.H.'s grandmother, D. Moore. L.H. rang Williams' doorbell and knocked on her door. L.H. also knocked on Moore's window on the ground floor of the house. No one answered the door, so L.H. ran to her friend's house behind Williams' home. L.H. testified that Brown was chasing her.
Williams testified that she heard her doorbell ringing and knocking on her front door in the middle of the night on November 3, 2007. When she opened the door, no one was there but then Brown came around from the side of her house "mumbling something like he's got a condom in his billfold."
When L.H. ran to her friend's home, no one answered the door. L.H. saw Brown standing on the side of Williams' house. She continued to run, and she went up the block to the home of her uncle, K. Union. Union answered the door and L.H. told him, "[M]y pawpaw tried to molest me." Union testified that L.H. told him that Brown tried to force himself on her and was chasing her down the street. Union did not see anyone in the street, but he called Nakisha and the police.
The police arrived shortly before Nakisha and her sisters. Officer Darrell M. Forrest talked to L.H. Officer Forrest testified that L.H. told him that
L.H. also told her mother, Nakisha, what had happened. L.H. told her mother "that he had tried something with her." Nakisha left L.H. at Union's home and went back to her house to see Brown. Officer Michael Simmons arrested Brown, testifying that Brown was mumbling in the back of the patrol car and definitely smelled like he was intoxicated.
On November 15, 2007, Nakisha took L.H. to Sunflower House where Jennifer Coughlin, an interview specialist, interviewed her about what happened with Brown on November 3. L.H.'s interview with Coughlin was videotaped and used by the State at trial without objection from Brown.
The State initially charged Brown with one count of aggravated indecent liberties with a child. The information contained Brown's date of birth and stated he was over the age of 18. The first and second amended information charged Brown with attempted aggravated indecent liberties with a child and aggravated indecent solicitation of a child. The amended informations did not include Brown's age.
At trial, neither party objected to the instructions given or requested any additional instructions. The instructions relating to the attempted aggravated indecent liberties charge failed to instruct the jury to find that Brown was over 18 years of age at the time of the offense. The jury convicted Brown of both counts, and the district court sentenced Brown to a hard 25 sentence for the primary offense, attempted aggravated indecent liberties, and 32 months for the aggravated indecent solicitation to run concurrent with the hard 25 sentence.
Brown argues that, before L.H. testified, the jury heard statements she made to Kevin Union, Nakisha H., and Jennifer Coughlin. Brown did not object at any time during the testimony of Union, Nakisha, or Coughlin.
On direct examination by the State, Union testified:
During cross-examination, Union testified:
Nakisha testified to the following during the State's direct examination:
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