State v. Smyser, 105,077.

• Decision Date: 26 April 2013
• Docket Number: No. 105,077.,105,077.
• Citation: 297 Kan. 199,299 P.3d 309
• Parties: STATE of Kansas, Appellee, v. Robert F. SMYSER, Appellant.
• Court: Kansas Supreme Court

297 Kan. 199

299 P.3d 309

STATE of Kansas, Appellee,

v.Robert F. SMYSER, Appellant.

No. 105,077.

Supreme Court of Kansas.

April 26, 2013.

Syllabus by the Court

1. Aggravated criminal sodomy is defined by K.S.A. 21–3506(a)(1) as sodomy with a child who is under 14 years of age. “ ‘Sodomy’ means oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.” K.S.A. 21–3501(2).

2. The actus reus of aggravated criminal sodomy under K.S.A. 21–3506(a)(1) is the defendant's act of sodomy with a child who is under 14 years of age. The definition in K.S.A. 21–3501(2) creates three alternative means of committing sodomy: (a) oral contact, (b) anal penetration, and (c) sexual intercourse with an animal.

3. Within the second alternative means of committing sodomy, i.e., anal penetration, the definition in K.S.A. 21–3501(2) only presents options within the means, that is, various factual circumstances that would prove the crime.

4. For jury instruction issues, the analytical progression and corresponding standards of review on appeal are: (a) First, the appellate court considers reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (b) next, the court uses an unlimited review to determine whether the instruction was legally appropriate; (c) then, the court determines whether there was sufficient evidence, viewed in the light most favorable to the party requesting the instruction, that would have supported it; and (d) finally, if the district court erred, the appellate court must determine whether the error was harmless, using the test, degree of certainty, and analysis set forth in State v. Ward, 292 Kan. 541, Syl. ¶ ¶ 5–6, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).

5. K.S.A. 22–3414(3) establishes a preservation rule for jury instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous.

6. To determine whether an instruction or a failure to give an instruction was clearly erroneous, the appellate court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.

7. 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.

Meryl Carver–Allmond, of Capital Appellate Defender Office, was on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were on the briefs for appellee.

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

Robert F. Smyser appeals his conviction for aggravated criminal sodomy. He asserts four issues: (1) an alternative means argument based upon K.S.A. 21–3501(2), which is the statutory definition for criminal sodomy; (2) whether a jury instruction incorrectly recited the State's burden of proof; (3) whether the sentencing court erred by imposing electronic monitoring and an order for no contact with the victim; and (4) whether the sentencing court erred in imposing BIDS attorney fees without considering Smyser's ability to pay. We affirm Smyser's conviction. We remand the BIDS portion of Smyser's sentence to the district court for additional findings and vacate the electronic monitoring and no contact conditions.

Factual and Procedural Background

The facts necessary to consider the arguments on appeal may be briefly stated. Smyser was charged with the April 2008 aggravated criminal sodomy of his 7–year old stepdaughter, K.S.

At trial, K.S.'s mother testified that K.S. told her Smyser—whom K.S. referred to as “daddy”—had slept with her the night before, rubbed lotion on her bottom, and wiped it off with a washcloth. After noticing K.S.'s bottom was red and had tears around the rectum, the mother took K.S. to the hospital. An investigating officer who met with K.S. testified the girl told him her “daddy slept with her, put lotion on her butt, put a blanket over her head to keep her quiet,” and “put his private part in her butt.”

A sexual assault nurse examiner performed a SANE/SART exam and testified at trial. The nurse described how K.S. told her that the night before the exam, when K.S.'s mother and brothers were sleeping, her dad woke her up, and was “checking my bottom with his wiener. He was touching me with it on my bottom.” The nurse testified that during the exam she did not find any injury to the child's vagina but found fresh injuries, including multiple tears, to her anus. The nurse said she concluded these injuries were consistent with anal penetration.

K.S. also testified at trial, describing how Smyser “put his penis into my penis, and then he put his penis in my bottom.” When asked, K.S. said she knew what her vagina was and that it was different from her bottom.

Smyser did not testify. The jury found him guilty of aggravated criminal sodomy. He filed a timely notice of appeal. This court's jurisdiction is proper under K.S.A. 22–3601(b)(1) (off-grid crime; life sentence).

Alternative Means

Smyser argues that because aggravated criminal sodomy, as charged and instructed in his case, could be committed by (1) anal penetration by a body part or (2) anal penetrationby an object, an alternative means issue is presented. See K.S.A. 21–3501(2). He asserts there was insufficient evidence to prove penetration by an object, so he was denied his statutory right to a unanimous jury verdict under K.S.A. 22–3421.

This court addressed, and rejected, an identical argument in State v. Burns, 295 Kan. 951, 963–64, 287 P.3d 261 (2012). In that case, we held that the anal penetration charged, which was based upon the definition in K.S.A. 21–3501(2), only presents options within a means—that is, various factual circumstances that would prove the crime without creating an alternative means problem. 295 Kan. at 964, 287 P.3d 261. The jury in Smyser's case was instructed that Smyser was charged with aggravated criminal sodomy and was given the elements the State needed to prove to establish that crime. The applicable instruction read:

“The defendant is charged with aggravated criminal sodomy. The defendant pleads not guilty.

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

“1. That the defendant engaged in sodomy with a child, to wit: [K.S.], who was under 14 years of age; and

“2. That the defendant was at least 18 years of age when the act of sodomy occurred; and

“3. That the act occurred on or between the 4th day of April, 2008, and the 7th day of April, 2008, in Marion County, Kansas.

“Sodomy means anal penetration, however slight, of a male or female by any body part or object.” (Emphasis added.)

Aggravated criminal sodomy is defined by K.S.A. 21–3506(a)(1) as sodomy with a child who is under 14 years of age. The definition of sodomy in K.S.A. 21–3501(2) provides that sodomy “means oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.” (Emphasis added.) The defendant in Burns was charged under the same statutes as Smyser. In Burns, we rejected the alternative means argument and explained:

“[E]ach act described within the definition of sodomy is separate and distinct from the other—the acts are factually different from one another, and one act is not inclusive of the others. Furthermore, each act is separated by a semicolon, which suggests that the legislature intended for each act to constitute a specific means of completing the general act of sodomy.

“The actus reus of aggravated criminal sodomy under K.S.A. 21–3506(a)(1) is the defendant's act of sodomy with a child who is under 14 years of age. The definition in K.S.A. 21–3501(2) creates three alternative means of committing sodomy, but within the second alternative means, the anal penetration charged here, the definition only presents ‘options within a means,’ that is, various factual circumstances that would prove the crime.

“In the phrase ‘anal penetration, however slight, of a male or female by any body part or object,’ the legislature did not define two or more distinct actus reus for this crime. The language on which Burns focuses, ‘by any body part or object,’ merely describes different factual circumstances by which a defendant might perpetrate the required anal penetration. The inclusion of ‘by any body part or object’ does not state material elements of sodomy but merely gives a full description of one of the means of committing sodomy; thus, it does not establish two alternative means of committing anal sodomy. Instead, the phrase only establishes one means of committing sodomy—anal penetration. The language ‘by any body part or object’ does not establish alternative means, but options within a means. Therefore, the inclusion of this language in the jury instructions does not make this an alternative means case and does...