State v. Morningstar
| Decision Date | 14 August 2009 |
| Docket Number | No. 99,788.,99,788. |
| Citation | 213 P.3d 1045 |
| Parties | STATE of Kansas, Appellee, v. Gary Lee MORNINGSTAR, Jr., Appellant. |
| Court | Kansas Supreme Court |
Kerwin L. Spencer, of Wellington, argued the cause, and Rachel L. Pickering, Kansas Appellate Defender Office, was with him on the brief for appellant.
Evan C. Watson, assistant county attorney, argued the cause, and Kassie L. McEntire, county attorney, and Steve Six, attorney general, were with him on the brief for appellee.
Gary L. Morningstar, Jr., appeals his convictions and sentences for one count of rape of a child under the age of 14 contrary to K.S.A. 21-3502(a)(2); one count of aggravated battery contrary to K.S.A. 21-3414; one count of abuse of a child contrary to K.S.A. 21-3609; and one count of aggravated endangering a child contrary to K.S.A. 21-3608a. For his conviction of rape of a child under the age of 14, Morningstar received a sentence of life imprisonment without the possibility of parole for 25 years and postrelease supervision for life pursuant to K.S.A. 21-4643, commonly referred to as Jessica's Law. He was sentenced to 48 months, 34 months, and 7 months for the remaining convictions. All sentences were ordered to run concurrently.
For the reasons explained below, we affirm the convictions but vacate Morningstar's off-grid severity level sentence under Jessica's Law for rape of a child under the age of 14. We remand for resentencing on that count under the Kansas Sentencing Guidelines Act (KSGA). Our rationale for ordering this resentencing is consistent with this court's recent dispositive holdings in State v. Bello, 288 Kan. ___, 211 P.3d 139, 144-45 (2009), and State v. Gonzales, 288 Kan. ___, 212 P.3d 215, ___ _ ___ (2009), slip op. at 28-29. Both decisions conclude that to sentence a defendant to an off-grid severity level sentence under Jessica's Law for aggravated criminal sodomy under K.S.A. 21-3506 or aggravated indecent liberties with a child under K.S.A. 21-3504, a defendant's age must be determined by a jury. The relevant reasoning in each of those cases is applicable here.
We address three arguments raised by Morningstar in this appeal: (1) whether the jury was required to determine Morningstar was 18 years of age or older before convicting him of rape under K.S.A. 21-3502, or before sentencing him under K.S.A. 21-4643(a); (2) whether the rape instruction was clearly erroneous because it omitted Morningstar's age as an element of rape; and (3) whether there was prosecutorial misconduct during closing arguments. We decline to address Morningstar's alternative arguments regarding a disproportionate/cruel or unusual sentence and the district court's denial of his request for a downward departure sentence.
On October 13, 2006, Morningstar was home watching B.M., his 6-month-old daughter. Morningstar called B.M.'s mother at work. She testified Morningstar was hysterical, and he asked her to come home because B.M. was bleeding. When the mother got to the apartment, B.M. was naked and lying in an empty bathtub. She put a diaper on B.M., grabbed a blanket, and drove B.M. to the hospital. Later, she told a detective that Morningstar refused to go with them to the hospital. The examining doctor contacted police for a sexual abuse evaluation after determining there was a tear in B.M.'s vaginal wall.
A sexual assault nurse testified B.M. had a 1-centimeter laceration starting at the hymen that "went all the way through or down to her rectum." This nurse testified she had been involved in 188 prior sexual assault cases, and she described B.M.'s injuries as the worst trauma she had ever seen to a child. She also testified the injury was caused by a blunt force trauma extensive enough to cause B.M.'s vaginal skin to rip. Disputing Morningstar's explanation for B.M.'s injuries, the nurse testified there would not be enough force used during a diaper change to cause such damage.
The pediatric surgeon who treated B.M. testified the infant had a "grade three perineal laceration" of the tissues at the back of the vagina and of the anal sphincter that did not extend into the rectum. He described the injury as bad and extremely rare in a child. He testified B.M.'s injury was similar to one that would "occur perhaps after a precipitous delivery in a woman ... who had not delivered before."
Morningstar told B.M.'s mother his finger slipped inside B.M. while he was changing her diaper. Morningstar told a detective B.M. had a messy diaper and "in the process of changing that diaper that his daughter had tensed up and that his finger ... went inside." He also told the detective that he was changing the diaper in a bedroom, and when B.M. became injured, he tried to control the bleeding with wipes and paper towels. In the process, Morningstar told the detective he put B.M. in the bathtub so he could call B.M.'s mother.
The relevant portion of the jury instruction on the rape charge came from PIK Crim.3d 57.01 and stated:
Morningstar did not object to this instruction at trial. After Morningstar was convicted as charged, he filed a motion for new trial, arguing the verdict was contrary to the evidence. He also pursued a motion for judgment of acquittal, arguing there was reasonable doubt. Both motions were denied. Morningstar filed a motion for a downward departure sentence, which was also denied. Morningstar timely appealed to this court. Our jurisdiction is proper under K.S.A. 22-3601(b)(1) ().
(1) Is Morningstar's conviction valid?
Morningstar argues his age—specifically, whether he was 18 years of age or older at the time the rape was committed—is an element of rape under K.S.A. 21-3502(a)(2) and under the enhanced sentencing provisions under K.S.A. 21-4643(a)(1). He argues there was insufficient evidence to convict him because the State did not introduce any evidence that he was 18 years of age or older.
The State does not contest Morningstar's claim that it did not introduce evidence regarding Morningstar's age during trial. Similarly, Morningstar does not dispute he was 18 years of age or older. The complaint listed Morningstar's year of birth as 1985. In his financial affidavit requesting a court-appointed attorney, Morningstar wrote he was born on June 24, 1985, making him 21 years old at the time of the offense.
Therefore, the issues regarding defendant's age are: (1) whether his age is an element of rape under K.S.A. 21-3502(a)(2); and (2) whether his age must be proven to the jury in order to sentence him under Jessica's Law in accordance with the dictates of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because these questions concern statutory and constitutional interpretation, our review is unlimited. Bello, 288 Kan. at ___, 211 P.3d at 142; State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008) (); State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007) ().
Morningstar was convicted of rape under K.S.A. 21-3502(a)(2). The statute provides in pertinent part:
"(a) Rape is:
....
(2) sexual intercourse with a child who is under 14 years of age;
....
(Emphasis added.)
K.S.A. 21-3501(1) defines sexual intercourse as The sentences for off-grid crimes are set forth in K.S.A. 21-4706, which provides in relevant part:
(Emphasis added.)
Morningstar was sentenced under K.S.A. 21-4643(a)(1), which states:
"[A] defendant who is 18 years of age or older and is convicted of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years....
....
"(B) rape, as defined in subsection (a)(2) of K.S.A. 21-3502, and amendments thereto."
The same crime-defining statutory structure was addressed recently in Bello, 288 Kan. at ___, 211 P.3d at 144. In Bello, the defendant was convicted of aggravated criminal sodomy under K.S.A. 21-3506 and aggravated indecent liberties with a child under K.S.A. 21-3504. This court noted each of those statutes set forth two separate severity levels of the offense applicable to the acts the defendant committed: one a KSGA nondrug grid box offense and the other an off-grid offense. 288 Kan. at ___, 211 P.3d at 144. The court reasoned:
"The determination of which offense applies turns on whether the offender was age 18 or older when committing the criminal act.
The structure of the crime-defining statutes here is akin to that of the theft statute, K.S.A. 21-3701, which describes varying levels of offenses based upon...
To continue reading
Request your trial
-
State v. Brown
...a child. To the contrary, Brown argues age is not an element of the offense. To support his argument, Brown cites State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009). In Morningstar, the defendant contended there was insufficient evidence to convict him of rape of a child under the age......
-
State v. Chanthaseng
...481 (2010); State v. Colston, 290 Kan. 952, 235 P.3d 1234 (2010); State v. Reyna, 290 Kan. 666, 234 P.3d 761 (2010); State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009); State v. Gonzales, 289 Kan. 351, 212 P.3d 215 (2009); State v. Bello, 289 Kan. 191, 211 P.3d 139 (2009). Chanthaseng......
-
State Of Kan. v. Reyna
...convicted were to be found in the KSGA. Bello, 289 Kan. at 199-200, 211 P.3d 139. We reached the same result in State v. Morningstar, 289 Kan. 488, 494-95, 213 P.3d 1045 (2009), Gonzales, 289 Kan. at 370-71, 212 P.3d 215. The failure to allege and to instruct on the defendant's age was erro......
-
State v. Holman
...Law in which we held the failure to allege and instruct on the defendant's age was error under Apprendi. See State v. Morningstar, 289 Kan. 488, 494–95, 213 P.3d 1045 (2009); [State v.] Gonzales, 289 Kan. [351,] 371[, 212 P.3d 215 (2009) ]; [State v.] Bello, 289 Kan. [191,] 199–200[, 211 P.......