State v. Jackson

• Decision Date: 15 October 2021
• Docket Number: No. 123,122,123,122
• Parties: STATE of Kansas, Appellee, v. Leland L. JACKSON III, Appellant.
• Court: Kansas Court of Appeals

500 P.3d 1188

STATE of Kansas, Appellee,

v.Leland L. JACKSON III, Appellant.

No. 123,122

Court of Appeals of Kansas.

Opinion filed October 15, 2021.

Peter Maharry, 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 Arnold-Burger, C.J., Schroeder, J., and Walker, S.J.

Arnold-Burger, C.J.:

Leland L. Jackson III appeals his convictions for aggravated indecent liberties with a child, commercial sexual exploitation of a child, and indecent liberties with a child. Jackson raises several claims of trial error, including: (1) The trial court failed to instruct the jury his actions needed to be done knowingly to support the commercial sexual exploitation of a child charge; (2) the jury was tainted when the alternate juror was allowed to participate in selecting the foreperson; (3) the prosecutor made improper statements on jury nullification during closing arguments; and (4) the cumulative effect of these errors violated Jackson's constitutional right to a fair trial. Finding no error, we affirm Jackson's convictions.

FACTUAL AND PROCEDURAL HISTORY

On an afternoon in May 2019, I.W., M.C., and K.H. were all walking to M.C.'s house after purchasing snacks from a QuikTrip in Wichita, Kansas. I.W. and M.C. were both 15 years old at the time, and K.H. was 16 years old. A man—later identified as Jackson—pulled up next to them in his car and asked if they knew where to get any marijuana. The girls got into Jackson's vehicle and accompanied him to a liquor store, then a smoke shop, and ultimately a hotel room. While the three girls were in the hotel room with Jackson, he had M.C. help him obtain an erection and then he had sex with I.W. in exchange for money.

During later interviews with police officers, I.W. and M.C. at first denied having any sexual contact with Jackson. M.C. eventually disclosed that she gave Jackson a "hand job" in exchange for $20, and I.W. admitted that Jackson offered her money in exchange for sex. A detective also interviewed Jackson, who admitted to paying I.W. and M.C. for sexual contact.

The State brought several charges against Jackson. As to I.W., the State charged Jackson with aggravated indecent liberties with a child and commercial sexual exploitation of a child. As to M.C., the State charged him with one count of indecent liberties with a child and one count of commercial sexual exploitation of a child.

The case proceeded to trial with Jackson representing himself. M.C., K.H., and I.W. testified on the State's behalf, offering identical versions of what had occurred.

All three girls testified they were walking back from QuikTrip when Jackson approached them in his vehicle. He asked if they knew where he could purchase marijuana, then showed them a bottle of alcohol and they got into his vehicle. While in the car, Jackson discussed having sex with the girls in exchange for money and they all eventually ended up in a hotel room. Once there, the girls began smoking marijuana and drinking and at some point, Jackson took his clothes off. M.C. testified that she received $20 from Jackson after she used her hand and "made him hard." After that, Jackson and I.W. had sex on the bed while M.C. and K.H. sat by the bathroom. The girls agreed Jackson gave I.W. money at some point, but the amount was unclear. K.H. believed it was "like hundreds," while I.W. testified she received either $60 or $100 and that M.C. received $40.

Jackson also testified on his own behalf at trial. On the stand, he admitted repeatedly to having sex with I.W. and paying her. As for M.C., however, Jackson said he did not pay her any money for sexual contact, but that M.C. initiated oral sex "on her own." Jackson also believed the girls were stealing from him, in particular because he saw I.W. taking money from the visor of his car but he "didn't fight that because [he] assumed that the deal was on anyway." He also claimed that all three girls stated they were 18 years old while at the hotel, which he believed because "[t]hey were all grown[,] talking grown, acting grown." Jackson said that I.W. on "that day passed as 25 years old, easy," so he "was shocked that [I.W.] said she was 18 because [he] picked the safe person, [he] thought, to have sex with."

During closing arguments, Jackson directed the jury's attention to Instruction No. 8—the elements of Count 1—which provided in part: "The State need not prove the defendant knew the child's age." Jackson explained:

"[The prosecutor] said that that law was there to prevent people from committing that crime and I disagree. That law is there to prevent people from having the defense who may have gotten into a situation like I did. That law is there to say, hey, no matter what you say, this is what the law says. You have to follow the law. That's what that law is there for. And fortunately, there is a lot of people who have made the same mistake that I made that are in this very county jail."

The trial court sustained the State's objection to that statement as being irrelevant and improper. Jackson then closed by stating, "I just want you all to keep that in mind when you are deliberating. Thank you." The prosecutor responded with the following:

"I just ask you to keep in mind the story of woe is not a defense. What he's essentially asking you to do is just to ignore the law because—well, because he wants you to. You took an oath to uphold the law and I'm asking you to do that."

After closing arguments, the trial court sent the jurors back to the jury room and instructed them to begin deliberations by selecting the presiding juror. After a brief recess, the court went back on the record and noted from the bench that it had inadvertently neglected to identify the alternate juror. The court advised the alternate juror he would not participate in deliberations unless one of the original twelve jurors could not participate anymore, and he would be separated from the others in the library during deliberations. The following exchange then occurred:

"[THE COURT:] Record should reflect that it was a matter of a minute or so from the time that you went back into the jury deliberation room with the other jurors and you did not participate in any deliberations back there; correct, sir?

"FOREPERSON: We had just elected the foreman.

"THE COURT: Okay. Thank you. If you'll have a seat back there. If nothing further, we'll stand in recess."

After deliberating, the jury found Jackson guilty on Counts 1, 2, and 3, and not guilty on Count 4 (commercial exploitation of M.C.). Jackson was ultimately sentenced to a total sentence of 324 months in prison and ordered lifetime postrelease supervision.

Jackson timely appealed.

ANALYSIS

I. THE DISTRICT COURT DID NOT COMMIT REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY ON THE CULPABLE MENTAL STATE REQUIRED FOR COMMERCIAL SEXUAL EXPLOITATION OF A CHILD .

At the conclusion of the evidence, the court instructed the jury:

"The defendant is charged with commercial sexual exploitation of a child. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. The defendant hired [I.W.] by giving, offering, or agreeing to give, anything of value to any person.

"2. The defendant hired [I.W.] to engage in sexual intercourse.

"3. At the time of the act, [I.W.] was less than 18 years old. The State need not prove the defendant knew the child's age.

"4. This act occurred on or between the 3rd day of May, 2019, and the 4th day of May, 2019, in Sedgwick County, Kansas."

As both parties note, the instruction plainly omits the culpable mental state required for the offense. K.S.A. 2018 Supp. 21-5202(a) ("Except as otherwise provided, a culpable mental state is an essential element of every crime defined by this code. A culpable mental state may be established by proof that the conduct of the accused person was committed ‘intentionally,’ ‘knowingly’ or ‘recklessly.’ "). The district court must instruct on the culpable mental state necessary for a conviction of a charged offense unless the statutory definition "plainly dispenses with any mental element." K.S.A. 2018 Supp. 21-5202(d).

That said, the instruction given mirrors the recommended pattern instruction for a commercial sexual exploitation of a child charge under K.S.A. 2018 Supp. 21-6422(a)(1). See PIK Crim. 4th 64.091 (2017 Supp.). But that does not require this court to approve the jury instruction despite the omission. Although the Kansas Supreme Court " ‘strongly recommend[s]’ " the use of PIK instructions, it has also recognized that a trial court should not hesitate to modify or add to pattern instructions where " ‘the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK.’ " State v. Bernhardt , 304 Kan. 460, 470, 372 P.3d 1161 (2016). The commercial sexual exploitation of a child statute requires proof of knowing conduct. PIK Crim. 4th 64.091 (2017 Supp.) erroneously omits the required culpable mental state. The omission is subject to a harmless error analysis.

Jackson argues that this omission constitutes reversible error. He contends the omission of this essential element of the offense deprived the jury of the opportunity to find him guilty beyond a reasonable doubt, thus amounting to structural error and requiring reversal of his conviction on Count 2.

Because Jackson admittedly did not object to the jury instruction at or before trial, and there is no dispute that Jackson's proposed instruction on appeal is both legally and factually appropriate, this court applies what is known as the clear error standard to determine if the instructional error merits reversal. Under that standard, we do not reverse the conviction unless we are firmly convinced that the jury would have reached a different verdict if the instruction error had not occurred. State v. McLinn , ...