State v. Moore, 86,630.

• Decision Date: 25 October 2002
• Docket Number: No. 86,630.,86,630.
• Citation: 274 Kan. 639,55 P.3d 903
• Parties: STATE OF KANSAS, Appellee, v. WILLIAM C. MOORE, Appellant.
• Court: Kansas Supreme Court

274 Kan. 639

55 P.3d 903

STATE OF KANSAS, Appellee, v. WILLIAM C. MOORE, Appellant.

No. 86,630.

Supreme Court of Kansas.

Opinion filed October 25, 2002.

Patrick H. Dunn, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with him on the briefs for appellant.

John H. Taylor, assistant county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee. The opinion of the court was delivered by

SIX, J.:

Defendant William C. Moore appeals his convictions of one count of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(3)(A), and one count of kidnapping, K.S.A. 21-3420(b).

The issues before us are whether the district court erred in: (1) responding to the jury's question, (2) admitting evidence of prior crimes, and (3) imposing an unconstitutional sentence. Moore also claims that prosecutorial misconduct, insufficient evidence, and cumulative error require reversal of his convictions.

Our jurisdiction is under K.S.A. 20-3018(c) (transfer from Court of Appeals on our own motion).

We find no error in the trial proceedings and affirm Moore's convictions. We also hold that the district court's decision to double defendant's sentence under K.S.A. 1997 Supp. 21-4704(j) does not violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.2d 435, 120 S. Ct. 2348 (2000). However, sua sponte, we raise the issue of the legality of Moore's sentence and the district court's use of a prior conviction to enhance his criminal history score and to qualify him as a persistent sex offender under 21-4704(j). Moore's sentence is vacated, and the case is remanded for resentencing.

FACTS

On August 20, 1997, a 15-year-old boy, S.C., reported that a few days before, he saw Moore walk from Moore's house to the backyard of the house next door where 6-year-old L.V. lived. S.C. next saw Moore take L.V. by the hand and walk her back to Moore's house. S.C. "got suspicious," so he knocked on Moore's front door. Receiving no answer, he walked around the house and peered into the back bedroom window. S.C. saw Moore on the bed, leaning over L.V. with his penis exposed on her chest. L.V. wore a flowery swimsuit, and her legs were spread around Moore's waist. L.V. was holding a red teddy bear, and Moore's hands were on L.C.'s waist. S.C. left the window. About 15 or 20 minutes later, he saw Moore and L.V. come out of the house. Moore hugged L.V. before she returned to her backyard.

Initially, S.C. did not report the incident to the police because he did not want to become involved with the police. He had recently been released from juvenile detention for violating curfew. Three or four days after the incident, S.C. informed L.V's mother and reported the incident to police. Later, he admitted that he had been untruthful in some of his statements to the police because he was afraid of being arrested for burglarizing Moore's house on the day before the incident. Details of S.C.'s version of events changed over time. At trial, S.C. explained that some of the inconsistencies between his initial report to the police and his testimony at the preliminary hearing and trial occurred because he did not want to admit that he had burglarized Moore's home.

According to S.C.'s trial testimony, he and J.H. had broken into Moore's house one evening in August 1997. At trial, S.C. testified against Moore in exchange for the State's agreeing not to prosecute him for the burglary of Moore's house.

Officer Hester testified that L.V. said Moore took her into his house and showed her a knife, a toy, and his "private part." When another officer asked her if Moore had shown her his private parts, she said, "No." L.V.'s mother testified that L.V. said Moore had led her out of her backyard and into his house where he pushed her onto the bed. L.V. also told her mother that Moore showed her a knife and a toy. According to L.V.'s mother, about a week later after talking to the officer, L.V. told her that Moore had showed her his "private part" but that she had closed her eyes.

L.V. testified at trial that she had been in Moore's house one time that summer. L.V. and a friend were swimming in her backyard. Moore was on his porch and let her come inside his house. L.V. claimed that her friend was with her. She said Moore took her into his bedroom. L.V. also said Moore did "something bad," which was to show her a toy and a knife. She testified that she had never seen a grown-up's "private place."

The district court admitted into evidence a videotape that was recovered from the items S.C. had stolen from Moore's home. The tape contained two segments showing L.V. and neighborhood children playing in L.V.'s backyard. According to Moore, he had repaired a video camera during the spring or summer of 1997. He said he tested the camera by placing it in a window and then making adjustments. Geraldine Blair, a program manager at a mental health clinic and a licensed specialist clinical social worker, was a witness for the State. Blair specialized in the treatment of sex offenders. She testified that sometimes child molesters videotape children so they can later masturbate or fantasize about that person. After viewing the videotape showing children at play over different periods of time, she expressed concern about an offender making such tapes. In her opinion, it suggested the offender might be relapsing.

The State also presented evidence of Moore's prior misconduct. In 1988, Moore pled nolo contendere to charges of sexual exploitation of a child and indecent liberties with a child. Moore served a prison term for these crimes and was paroled in 1995.

An investigating officer testified that the 1988 case was based upon a videotape in which Moore filmed a young girl. The tape had been destroyed by the time of the current trial. The officer testified to what he had seen on the tape. The tape depicted the girl lying fully clothed on a couch. After some whispering, she gyrated her hips. After a distortion in the tape, the girl's pants and panties were around her knees, and Moore reached over and fondled her vaginal area; then the camera zoomed in on her vaginal area.

Moore served a prison term for these crimes and was paroled in 1995.

Moore testified in his defense. He denied taking L.V. into his house, showing her a toy, or exposing his genitalia to her. He claimed that he was being set up by S.C. According to Moore, he returned from work one evening around midnight and caught S.C. and his friend J.H. "fooling" with Moore's car. When confronted, they allegedly swung a baseball bat at Moore. Moore later learned that they had loosened lug nuts on his car. Moore claimed that he asked a friend to report the incident to police, but there was no reference on the police department's computer logs concerning such a report. Moore's parole officer testified that Moore never informed him of the alleged incident. At trial, both S.C. and J.H. denied any incident involving Moore's car or a baseball bat.

Moore also testified that S.C. tried to extort money from him. Once, S.C. came to Moore's house and said, "[Y]ou give me $500 dollars or you will go back to prison. I'm going to tell the police something that will put you back in prison." A friend of Moore's testified that he had heard a conversation where S.C. talked to Moore about $500. However, Moore did not report the "back in prison" incident to police.

Moore was convicted of both crimes. The district court imposed two concurrent terms of 380 months' imprisonment. Moore was 67 years old at the time he was sentenced in 1998.

DISCUSSION

The Jury Question

Moore argues that the district court erred in its response to a question submitted by the jury. We disagree.

K.S.A. 22-3420(3) provides:

"After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney."

Our standard of review is abuse of discretion. See State v. Manning, 257 Kan. 128, 130-31, 891 P.2d 365 (1995). Judicial discretion is abused only when no reasonable person would take the view adopted by the district court. State v. Lopez, 271 Kan. 119, 125, 22 P.3d 1040 (2001).

Before jury deliberations, the district court gave the following instruction:

"The defendant is charged with the crime of aggravated indecent liberties with a child. The defendant pleads not guilty.

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

"1. That the defendant fondled or touched the person of [L.V.] in a lewd manner, with the intent to arouse or satisfy the sexual desires of either the child, himself or both;

"2. That [L.V.] was a child under 14 years of age; and

"3. That this act occurred between 1 and 20 August, 1997, in Geary County, Kansas.

"Lewd fondling or touching may be defined as a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral sense of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of either the child or the offender or both. Lewd fondling or touching does not require contact with the sex organ of one or the other."

During deliberations, the jury asked, "Would the taking of videotapes qualify for the charge of aggravated indecent liberties with a child?"

Outside the presence of the jury, the judge expressed to Moore and counsel that in answering the question, he would simply reread the jury instruction on indecent liberties or direct the jury to that instruction. Defense counsel thought the judge should tell the jury that the answer to the...