State v. Smith, No. 104,245.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by BILES
Citation327 P.3d 441,299 Kan. 962
PartiesSTATE of Kansas, Appellee, v. Francis SMITH, Appellant.
Decision Date27 June 2014
Docket NumberNo. 104,245.

299 Kan. 962
327 P.3d 441

STATE of Kansas, Appellee,
v.
Francis SMITH, Appellant.

No. 104,245.

Supreme Court of Kansas.

June 27, 2014.


[327 P.3d 445]



Syllabus by the Court

1. When considering a challenge to the admission of evidence, the first step is to determine whether the evidence is relevant. Relevant evidence is evidence having any tendency in reason to prove any material fact. Relevance is established by a material or logical connection between the asserted facts and the inference or result they are intended to establish. Once relevance is established, the second step requires the court to apply the statutory rules governing admission and exclusion of evidence. These rules are applied either as a matter of law or in the exercise of the trial court's discretion.

2. A district court abuses its discretion when: (a) no reasonable person would take the view adopted by the judge; (b) a ruling is based on an error of law; or (c) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based.

3. Evidence the defendant possessed legal pornography of any particular sexual orientation is not probative to rebut or impeach the defendant's claim that he or she does not actively engage in the particular sexual practice portrayed in the pornography.

4. Under the nonconstitutional harmless error standard of K.S.A. 60–261, the burden of demonstrating harmlessness is on the party benefitting from the error. That party must show there is no reasonable probability the error affected the trial's outcome in light of the entire record.

5. A jury instruction directing the jurors that “[y]ou must presume that the defendant is not guilty until you are convinced from the evidence that [the defendant] is guilty” should have substituted “unless” for “until.” But use of the word “until” was not cause for reversal.

6. The district court did not commit error by instructing the jury that “[i]f you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” While not the preferred instruction, it was legally appropriate.

7. An illegal sentence is one imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in character or term of the punishment authorized; or a sentence that is ambiguous with regard to time and manner in which it is to be served.

8. K.S.A. 22–3717(u) provides that the parole (now prisoner review) board shall order electronic monitoring as a condition of parole for inmates sentenced to parole for life.


Meryl Carver–Allmond, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Terri L. Johnson, county attorney, argued the cause, and Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were with her on the briefs for appellee.


The opinion of the court was delivered by BILES, J.:

Francis Smith directly appeals his convictions of four sex offenses. The charges stem from an incident during which Smith touched two girls, who were 13 and 15 years old, while photographing them in provocative poses wearing two-piece, bikini-style bathing suits. Smith orchestrated the photo session and had the teenage girls touch each other for some of the photographs. He was convicted

[327 P.3d 446]

of two counts of aggravated indecent liberties with a child and two counts of indecent liberties with a child. A majority of the court affirms his convictions, but we remand on a sentencing issue.

Smith raises seven issues: (1) whether the trial court erroneously admitted prior crimes evidence to prove motive and intent; (2) whether the trial court erroneously admitted photographs of the covers of pornographic magazines and videos taken from his house; (3) whether the trial court's jury instruction on burden of proof was clearly erroneous; (4) whether the sentencing court erroneously used a prior conviction for multiple sentencing purposes; (5) whether the sentencing court exceeded its authority by entering orders prohibiting contact with the victims; (6) whether the sentencing court erroneously ordered lifetime electronic monitoring; and (7) whether the sentencing court erroneously imposed lifetime postrelease supervision for the off-grid offenses.

Factual and Procedural Overview

Smith was charged with and convicted of two counts of aggravated indecent liberties with a child against the 13–year–old victim (H.D.) and two counts of indecent liberties with a child against the 15–year–old victim (M.M.) based on events occurring on May 20, 2008. That day, H.D. and M.M. skipped school and went to Smith's house. Smith had become a family friend after meeting H.D.'s father through work. H.D. and her two older brothers frequently watched movies and played video games at Smith's house.

There is conflicting evidence whether the incident was planned, but Smith took multiple Polaroid photographs of H.D. and M.M. in their bikini swimsuits, which were later shown to H.D.'s father, leading to a police investigation. Twenty-four photographs were admitted into evidence at trial, although some are duplicates. It is necessary to describe the photos to understand their content and context to the issues discussed.

A few photos are of H.D. and M.M. from the waist up in bikini tops. In the remaining photos, H.D. and M.M. had removed their pants and are wearing bikini bottoms. The photos include images of H.D. and M.M. standing with their legs spread apart; sitting or standing with their arms or legs intertwined while pressing their lips together or open-mouthed touching tongues; and some show H.D. and M.M. positioned with their heads towards a wall while their legs are spread open towards the camera. In one photo, H.D. and M.M. are on their hands and knees with their legs spread open towards the camera, their heads turned towards each other with lips pressed together.

A detective interviewed H.D. and M.M. These interviews were recorded and played for the jury. In her interview, M.M. said Smith had already bought H.D. the bikini she wore in the photographs and that “Smith told [H.D.] whenever he bought it that he wanted pictures and [H.D.] said Ok.” When asked whether there was anything Smith did or said that the detective should know about, M.M. said H.D. wanted to wash her hair before taking the pictures and Smith suggested H.D. shower. When asked what M.M. thought he meant, M.M. said Smith was not going to leave “[b]ut once we said that we were just going to wash our hair he said ok I'm going to go to Walgreens.” M.M. also said Smith told them to act like they were kissing and told them “that we were hot a lot.” She explained she and H.D. were “iffy” about the pictures in which Smith had both girls face the wall so their heads were positioned away from the camera because “he is old and we are young.”

When asked if anything happened besides picture taking, M.M. said Smith would adjust their bikini bottoms as they were lying on the floor, which she said “would gross us out” and “it is nasty.” When asked whether Smith's hands touched their bottoms, M.M. said “yes and usually whenever [Smith] would be fixing [H.D.]'s he would pull it up or whatever and then he would tap her and he'd go back and take a picture.”

M.M. also said that after Smith adjusted their swimsuit bottoms for the picture with them on their hands and knees and their bottoms towards the camera, Smith went back to take the picture and said, “[Y]eah, [H.D.] knows I like young girls.” M.M. told the detective Smith later took them to Walmart

[327 P.3d 447]

after giving them $50 each. On the way, Smith asked the girls if their boyfriends would like the pictures more if they were topless and offered them $200 to take pictures with their tops off next time.

In her police interview, H.D. said Smith had suggested taking the photographs to submit to some people in California who could get her and M.M. modeling jobs and that Smith paid each girl $50 after taking the photographs. H.D. denied Smith touched the girls during the photo session but amended this statement later at trial and admitted he had touched them. H.D. said Smith had told her “many times,” including “a couple days ago,” that he is “interested in young girls.”

After interviewing H.D. and M.M., law enforcement officers went to Smith's residence. Smith admitted taking pictures of the girls from their waist up but denied taking the other pictures. He said a lady he did not know, possibly M.M.'s aunt, took the other photographs. Smith acknowledged he paid the girls $50 but denied the money was for the photographs. He admitted possessing a set of the photographs but said he had disposed of those photographs.

Smith consented to a search of his residence, during which officers discovered and photographed several DVDs and magazines depicting young females in sexual positions and containing titles such as “Barely Legal,” “Teenage Nymphos,” “Teach the Young, Make them Cum,” “Just 18,” “Just Popped,” “Cherry Pop,” “Ripe,” and “Wild Cherries.” The search also uncovered a DVD entitled “Luxurious,” which allegedly depicted a “she-male.” As Smith was being arrested and handcuffed after the search, he said he would not have engaged in any improper action with the girls because he was gay and liked “he-shes” or females with male genitalia.

At trial, M.M. testified that Smith began taking the photos in his living room while she and H.D. were wearing bikini tops and jeans. Smith then proposed they act like they were kissing and suggested they take more pictures in an empty bedroom. She said Smith decided how the girls should pose and instructed them to spread their legs apart. And when describing how Smith touched the girls, M.M. testified that at various times Smith “took his finger...

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23 practice notes
  • State v. McLinn, No. 114,506
    • United States
    • United States State Supreme Court of Kansas
    • January 26, 2018
    ...of fact on which the exercise of discretion is based.’ " State v. Jolly , 301 Kan. 313, 325, 342 P.3d 935 (2015) (quoting State v. Smith , 299 Kan. 962, 970, 327 P.3d 441 (2014) ). "The burden of demonstrating error is on the party alleging the abuse." Smith-Parker , 301 Kan. at 161, 340 P.......
  • Univ. of Kan. Hosp. Auth. v. Bd. of Comm'rs of the Cnty. of Wabaunsee, No. 104,236.
    • United States
    • United States State Supreme Court of Kansas
    • June 27, 2014
    ...affirm the district court's grant of summary judgment in favor of the County on the Hospital Authority's common-law and statutory claims. [327 P.3d 441]Quantum Meruit The Court of Appeals did not address the Hospital Authority's quantum meruit claim because it held the Hospital Authority wa......
  • State v. Paulson, 108,795.
    • United States
    • Court of Appeals of Kansas
    • October 23, 2015
    ...have some tendency to make a material, disputed proposition more or less likely true to be admissible. K.S.A. 60–401(b) ; State v. Smith, 299 Kan. 962, 969, 327 P.3d 441 (2014).Paulson cites State v. Cathey, 241 Kan. 715, 730, 741 P.2d 738 (1987), disapproved on other grounds State v. Schoo......
  • State v. Thurber, No. 102,605
    • United States
    • United States State Supreme Court of Kansas
    • June 15, 2018
    ...value. State v. Seba , 305 Kan. 185, 213, 380 P.3d 209 (2016). This inquiry is reviewed for abuse of discretion. State v. Smith , 299 Kan. 962, 970, 327 P.3d 441 (2014). And on that basis, it is hard to discern any risk of unfair prejudice from these minimal background details. Having alrea......
  • Request a trial to view additional results
23 cases
  • State v. McLinn, No. 114,506
    • United States
    • United States State Supreme Court of Kansas
    • January 26, 2018
    ...of fact on which the exercise of discretion is based.’ " State v. Jolly , 301 Kan. 313, 325, 342 P.3d 935 (2015) (quoting State v. Smith , 299 Kan. 962, 970, 327 P.3d 441 (2014) ). "The burden of demonstrating error is on the party alleging the abuse." Smith-Parker , 301 Kan. at 161, 340 P.......
  • Univ. of Kan. Hosp. Auth. v. Bd. of Comm'rs of the Cnty. of Wabaunsee, No. 104,236.
    • United States
    • United States State Supreme Court of Kansas
    • June 27, 2014
    ...affirm the district court's grant of summary judgment in favor of the County on the Hospital Authority's common-law and statutory claims. [327 P.3d 441]Quantum Meruit The Court of Appeals did not address the Hospital Authority's quantum meruit claim because it held the Hospital Authority wa......
  • State v. Paulson, 108,795.
    • United States
    • Court of Appeals of Kansas
    • October 23, 2015
    ...have some tendency to make a material, disputed proposition more or less likely true to be admissible. K.S.A. 60–401(b) ; State v. Smith, 299 Kan. 962, 969, 327 P.3d 441 (2014).Paulson cites State v. Cathey, 241 Kan. 715, 730, 741 P.2d 738 (1987), disapproved on other grounds State v. Schoo......
  • State v. Thurber, No. 102,605
    • United States
    • United States State Supreme Court of Kansas
    • June 15, 2018
    ...value. State v. Seba , 305 Kan. 185, 213, 380 P.3d 209 (2016). This inquiry is reviewed for abuse of discretion. State v. Smith , 299 Kan. 962, 970, 327 P.3d 441 (2014). And on that basis, it is hard to discern any risk of unfair prejudice from these minimal background details. Having alrea......
  • Request a trial to view additional results

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