State v. Henderson, No. 120,213

• Decision Date: 27 March 2020
• Docket Number: No. 120,213
• Citation: 459 P.3d 1281 (Table)
• Parties: STATE of Kansas, Appellee, v. Michael L. HENDERSON, Appellant.
• Court: Kansas Court of Appeals

459 P.3d 1281 (Table)

STATE of Kansas, Appellee,

v.Michael L. HENDERSON, Appellant.

No. 120,213

Court of Appeals of Kansas.

Opinion filed March 27, 2020.

MEMORANDUM OPINION

Per Curiam:

Michael L. Henderson appeals from his conviction of electronic solicitation of a child in Douglas County after an undercover police officer responded to a thinly veiled ad for a sexual encounter Henderson posted on the website Craigslist. Before his trial started, the State committed two discovery violations when it inadvertently withheld evidence. Henderson then requested multiple continuances to review and address this new evidence. On appeal, Henderson argues that the delays caused by the State's discovery violations impaired both his statutory and constitutional rights to a speedy trial. He also claims four additional trial errors on appeal: the prosecutor committed error by misstating the law regarding venue during closing arguments, the State did not present sufficient evidence to prove venue, the verdict form violated his right to presumed innocent because it placed "guilty" before "not guilty" on the form, and cumulative error denied him a fair trial. Because our review of the record fails to persuade us that Henderson's claims are meritorious, his conviction is affirmed.

FACTS

In 2015, Henderson and his now ex-wife, Jamie Jenkins, were separated and shared joint custody of their young daughter. Jill Freisberg, Jenkins' aunt, became concerned that Henderson might be sexually abusing his daughter. Freisberg knew Henderson used Craigslist to seek out romantic partners, and found a listing on Craigslist that she believed Henderson had posted. Freisberg found the listing under the " ‘men seeking women’ " section of the website and it was entitled, " ‘wanna go bowling (Lawrence).’ " The entirety of the posting stated:

" ‘I don't know why this is so hard, but I'm looking for someone to go bowling with tonight (09/28/16) after midnight when I get off work. My treat. If more happens fine if not fine as well. I am 100% real it's cooling off outside. Respond with "bowling" in the subject line. I'll send pics.’ "

Posing as a teenage girl named "Jessica Brown" (Jessica), Freisberg responded to the posting. Henderson and Jessica sent multiple messages over a couple of weeks, but Henderson never solicited sexual activity. Eventually, Freisberg became uncomfortable with the conversation and decided to contact law enforcement. She provided Detective Dean Ohman of the Douglas County Sheriff's Department with the credentials to log into Jessica's account.

After Detective Ohman took control of the account, he contacted Sergeant Chris Evans of the Johnson County Sheriff's Department to consult and assist in the investigation. After reviewing the e-mails between Henderson and Jessica, Evans concluded that the messages warranted a formal investigation.

Soon afterward, Sergeant Evans sent a response to Henderson's Craigslist posting using his own undercover account and posing as a 14-year-old girl named "Heather Johnson" (Heather). During a one-week period, Henderson and Heather exchanged 660 e-mails. Heather revealed her age in the fifteenth e-mail and over the course of the exchange, Henderson initiated conversation about sex, suggested exchanging pictures, and suggested meeting in person.

Henderson and Heather made plans to meet at a location in Lawrence. Upon Henderson's arrival at the designated location, Sergeant Evans and Detective Ohman arrested him. The State subsequently charged Henderson with electronic solicitation of a child.

Before trial, Henderson moved to dismiss the case, claiming that law enforcement engaged in outrageous conduct with the goal of entrapping him after they failed to prove he had molested his daughter. The district court held a hearing on the motion, and Freisberg testified about the Jessica e-mails. Freisberg also testified that she believed the e-mails admitted at the hearing were a fair and accurate copy of the conversation she had with Henderson. Ultimately, the district court denied the motion to dismiss.

Although the district court denied Henderson's motion to dismiss, Freisberg's testimony caused a discovery dispute because Freisberg testified about certain e-mails and a photo that were not given to Henderson in discovery or included in the e-mails admitted into evidence at the hearing. As he was reviewing the e-mails in the case the night before the matter was to proceed to jury trial, Detective Ohman discovered missing e-mails sent between Henderson and Jessica that were not included in the discovery given to the defense. The same night, the prosecutor e-mailed Henderson's counsel, notified him of the discovery, and attached a copy of the missing e-mails. In her e-mail to defense counsel, the prosecutor stated that the e-mails were not "being presented in the State's case in chief" but wanted to make sure he was given a copy as soon as possible "out of an abundance of caution."

The following morning, the attorneys met in chambers to discuss the missing e-mails. The State maintained that the e-mails sent between Henderson and Jessica had been temporarily lost by law enforcement because of a side effect of the software used by the State. According to the State, Detective Ohman used a program that formatted e-mails to create a PDF which was then used as discovery. The State told the district court that this format of the e-mails was difficult to use, so the State requested the Douglas County Sherriff's Department to make "an easier-to-read version" of the e-mails. Once the department completed this version, Ohman realized there were missing e-mails and notified the prosecutor.

Henderson's counsel argued that the e-mails were exculpatory for the impeachment of Freisberg and for Henderson's predisposition to commit the crime. Henderson's counsel asked the district court to issue sanctions against the State for this late discovery and requested the district court to "order the State to show cause as to why the court should not reconsider it's ruling on Mr. Henderson's motion to dismiss for outrageous government conduct." In the alternative, Henderson's counsel requested that the court suppress any evidence of the e-mails between Jessica (Freisberg) and Henderson for all purposes.

The district court determined it was "not going to find that there's bad faith on the part of the State" and it was "not finding that there was a conscious decision to eliminate or redact some [e-mails] and not others." The court agreed with Henderson that the e-mails were exculpatory for the impeachment of Freisberg but declined to reconsider the motion to suppress in chambers. As a result, Henderson's counsel was "compelled to move for a continuance to investigate this matter further" and the district court granted the continuance. Initially, the district court planned to charge the time to the State for speedy trial purposes. But because Henderson's counsel wanted time to file motions and hire an expert witness, he requested the district court charge the State with the time between the day the trial was planned to start, September 18, 2017, and the next available trial date, October 16, 2017, a total of 28 days. Henderson then agreed to waive the remaining time between October 16, 2017, and the rescheduled trial date three months later, February 26, 2018, for a total of 133 days charged to the defense.

Following the continuance, Henderson filed a motion to suppress which requested the district court impose sanctions against the State and suppress all e-mails between Jessica and Henderson. The district court held a hearing on this motion and expressed concern that the State did not realize the e-mails were missing sooner, especially considering Freisberg's testimony at the motions hearing. The district court found that the State's actions violated the discovery statute under K.S.A. 2019 Supp. 22-3212(a) but held there was not "sufficient prejudice" to compromise the ability of Henderson to have a fair trial. The district denied Henderson's motion to suppress. In summarizing the situation, the district court judge held:

"But I do want to make clear that the State should have from [the first motion hearing] on been comparing and doing what it did the night before trial. That information was there. It was on-line live, and to not go through that and do a comparison until the night before trial instead of the night before the [first motion hearing] is something that I just don't understand. But I think that the continuance makes certain that there's no prejudice to the defense in presenting his defense at trial, and so that's the sanction that is appropriate and that was imposed being the least restrictive sanction to ensure a fair trial."

Following the suppression hearing, Henderson moved the district court to hold the prosecutor in contempt and disqualify her from handling the case. The district court denied both motions and held that it did not find that the prosecutor "willfully or intentionally withheld information simply because the Court thought that she knew or should have known sometime earlier. When she did know, she took corrective action; she provided it to the defense."

On the day the trial was rescheduled to start, the parties began jury selection. But during a lunch break, Detective Ohman informed the prosecutor that he had failed to include the e-mails from when Freisberg first contacted him. The State informed the district court and Henderson, and Henderson's counsel asked for dismissal in response. The district court denied that sanction. Instead, the district court granted Henderson's alternative motion to continue the trial and charged the time to the State. Ohman testified the next day and stated that he had not included the e-mails in evidence because he had summarized them in his report and they were not "investigative information."

Henderson filed another motion to dismiss before the trial began and argued that the delays...