State v. Butler
| Decision Date | 20 May 2022 |
| Docket Number | 123,958 |
| Citation | 508 P.3d 1293 (Table) |
| Parties | STATE of Kansas, Appellee, v. Maggie BUTLER, Appellant. |
| Court | Kansas Court of Appeals |
Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Bruns, P.J., Cline, J., and James L. Burgess, S.J.
Maggie Butler had sex with S.L., the 15-year-old son of her best friend, after the boy had been drinking at a party. She was 37 years old at the time. After a jury convicted her of aggravated indecent liberties with a child, Butler sought both a dispositional and durational sentencing departure. The district court denied her a dispositional departure, but it granted her a durational departure and sentenced her to 48 months in prison.
Butler claims the court should have granted her a dispositional departure since the boy initiated the encounter that evening and she has a limited criminal history. She contends she should have been given probation, thus "sav[ing] prison space for more violent offenders," and that giving her probation would better promote her rehabilitation and reduce recidivism. And she alleges the district court erred by failing to declare a mistrial, sua sponte, based on the prosecutor's questions during Butler's cross-examination. After review of the record and governing law, we find no abuse of discretion in either instance. We affirm Butler's sentence.
Butler and S.L.'s mother, D.B., were childhood friends. In 2016, Butler and D.B. reconnected after Butler moved back to Kansas. Butler often helped D.B. by taking care of her children, including S.L. The children called Butler "Aunt Maggie."
At some point in 2017, D.B. invited Butler to join her relationship with D.B.'s common-law husband, D.M. This three-way sexual relationship lasted for about a year. Eventually, D.B. and D.M. broke up, but D.M. continued seeing Butler without D.B.'s knowledge.
In September 2018, while looking through S.L.'s phone, D.B. discovered text messages between S.L. and Butler sent earlier that month. In these texts, which were exchanged between 2 and 3 a.m., S.L. told Butler he wanted to have sex with her. He admitted he had never had sex and was shy to try it with his girlfriend. He said he thought it would be "easier to do it with someone who could help" him. Butler then invited him over to her house. After approximately 40 minutes, S.L. texted Butler again asking her: "[H]ow was it," and "was it a normal size or like what." Butler responded by texting: and "you are a normal size and you did great." Butler then followed up by telling S.L.: "This has to stay between us for real."
D.B. reported these texts to the police, and Butler was charged with aggravated indecent liberties with a child.
At Butler's jury trial, S.L. testified that during the 40-minute gap in the text message exchange, he walked to Butler's house and met her on the back porch, where they spoke for a while before going inside and having sex in her bedroom. He said he had wanted to have sex with Butler because he was a virgin. He was considering having sex with his girlfriend but was nervous he would not perform well. He testified he wanted Butler to show him "what to do and the best things to do." S.L. provided a detailed description of the events leading up to, during, and after the sexual encounter. He also stated that on this night his family had been drinking and his grandparents had given him alcohol. He admitted that since he was drunk, he felt emboldened to proposition Butler, something he would not have otherwise tried to do.
Screenshots of the text messages between S.L. and Butler were admitted into evidence and reviewed by the jury.
S.L. admitted he first denied having sex with Butler when speaking with the detective. He said he never wanted Butler to go to jail for what she had done. He admitted he had warned Butler that his mother had reported the texts to the police and initially cooperated with Butler to try to cover it up by exchanging other text messages that made it seem like the two did not have sex. He testified that part of this cover-up included trying to make it seem like his mother was making it all up to try and get "everyone to hate" Butler and D.M.
Butler, meanwhile, denied having sex with S.L. She claimed S.L. merely showed her his penis to confirm that it was normal. She said on that night she and D.B.'s family had been celebrating together and drinking heavily. She testified that when S.L. started texting her, she was on her back porch with her brother and D.B. She said S.L. then walked over, at which point D.B. went inside, leaving only Butler, her brother, and S.L. on the porch. Butler testified that after a short conversation, S.L. then showed his penis to her and her brother. She claimed S.L. wanted reassurance because he was concerned his girlfriend would laugh at him since he was uncircumcised.
Butler insisted that in the text messages between her and S.L., she was not referring to any sexual contact but was only commenting on S.L.'s penis and reassuring him that he would do fine in his first sexual encounter.
Butler's theory of defense focused on the love triangle between Butler, D.B., and D.M. and the fact that S.L. first denied anything happened when confronted by his mother and others. Butler argued that S.L. was then pressured into changing his story by the police and his mother, who was intensely jealous of Butler because of her continuing relationship with D.M. and was intent on getting back at Butler.
Ultimately, the jury found Butler guilty. Butler later moved for a dispositional departure to probation or, in the alternative, a durational departure. The district court denied Butler's motion for a dispositional departure but granted a durational departure and sentenced Butler to 48 months in prison with lifetime postrelease supervision.
The district court did not err in denying Butler a dispositional departure.
Butler first argues the district court erred in denying her motion for a dispositional departure. We review the district court's decision for an abuse of discretion. State v. Boswell , 314 Kan. 408, 413, 499 P.3d 1122 (2021). Butler must show the district court's decision was (1) arbitrary or unreasonable—i.e., no reasonable person would have taken the view adopted by the district court; (2) based on an error of law; or (3) based on an error of fact. State v. Woodring , 309 Kan. 379, 380, 435 P.3d 54 (2019). Butler, as the party asserting an abuse of discretion, bears the burden of proof. See State v. Thomas , 307 Kan. 733, 739, 415 P.3d 430 (2018).
Under K.S.A. 2020 Supp. 21-6815(a), a district court must impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to depart from the guidelines. If a departure sentence is appropriate, a district court may depart from the sentencing guidelines. K.S.A. 2020 Supp. 21-6818(a). The Legislature has provided a nonexclusive list of mitigating factors a district court may consider in determining whether substantial and compelling reasons justifying a departure exist. K.S.A. 2020 Supp. 21-6815(c)(1).
A district court may find that the same set of mitigating and aggravating factors support granting a durational departure but not a dispositional departure. And in reviewing a district court's weighing of these factors, an appellate court does not mechanically tally the factors weighing for and against the departure but looks to see whether reasonable minds could reach the same conclusion as the district court. See State v. Ballard , 289 Kan. 1000, 1008-10, 218 P.3d 432 (2009).
In claiming the district court abused its discretion in refusing to grant her probation, Butler notes that the district court found substantial and compelling reasons existed to support a durational departure. That is, she argues the factors which support the durational departure also support a dispositional departure. Given the existence of these factors, Butler argues that no reasonable person could conclude that probation was not warranted.
The district court identified the substantial and compelling reasons supporting its grant of a durational departure but not a dispositional departure: (1) The commission of the crime was easier because S.L.'s family had been drinking and provided S.L. with alcohol; (2) S.L. testified that he initiated the encounter and Butler did not force herself on S.L.; (3) S.L. was a child and because of his immaturity did not appreciate or understand what he was asking Butler to do, especially given the fact he was inebriated, and Butler should have rebuked his advances; (4) S.L., who was now an adult, did not want to see Butler punished, but at the time he was possibly unable to understand the significance of what Butler had done to him because of his age and background; (5) S.L. was only 10 days away from being 16 when the offense occurred, but Butler was still more than 20 years his senior and should have recognized how his difficult life history made him more vulnerable to trauma; and (6) Butler had a very light criminal history.
In sum, the district court noted that while the presumptive prison sentence may be disproportionate to the facts of the case, the offense was still a serious and intolerable one, and incarceration was thus warranted.
We cannot say that no reasonable person could agree with the district court's decision. While the district court acknowledged there were mitigating factors which distinguished Butler's case, Butler still committed a serious offense. As the State notes, the victim was the 15-year-old son of Butler's close friend, who was himself close enough to call Butler "Aunt Maggie." Butler knew S.L. had been drinking, and she testified she knew he was embarrassed about having sex. The district court found...
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