State v. Voyles

• Decision Date: 22 June 2007
• Docket Number: No. 92,030.,92,030.
• Parties: STATE of Kansas, Appellee, v. Marshall M. VOYLES, II, Appellant.
• Court: Kansas Supreme Court

160 P.3d 794

STATE of Kansas, Appellee, v. Marshall M. VOYLES, II, Appellant.

No. 92,030.

Supreme Court of Kansas.

June 22, 2007.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and Shawn E. Minihan, of the same office, was on the brief for appellant.

Bradford L. Williams, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

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

This multiple acts case provides us the opportunity to determine the continuing viability of our standard of review for the failure to "elect or instruct" as articulated in State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001).

For Marshall M. Voyles, II's conduct involving two girls in as many as five different locations, he was charged with and convicted of eight counts: two counts per girl for aggravated indecent solicitation of a child in violation of K.S.A. 21-3511 and two counts per girl of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1). Among other things, on appeal he claimed error based upon the State's failure to elect which of several acts it relied upon to constitute each count, and the court's failure to provide an instruction requiring the jury to agree upon the specific act constituting each count. The Court of Appeals affirmed in State v. Voyles, 34 Kan.App.2d 110, 116 P.3d 720 (2005). We granted Voyles' petition for review, and our jurisdiction is pursuant to K.S.A. 20-3018(b).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Was the district court's failure to provide a unanimity instruction reversible error? Yes.

2. Is section (a)(1) of the Kansas aggravated criminal sodomy statute, K.S.A. 21-3506, unconstitutional under the Due Process Clause of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights? No.

3. Did the district court err in ordering Voyles to reimburse the State Board of Indigents' Defense Services? Yes.

Accordingly, the judgment of the Court of Appeals affirming the district court is reversed, and the judgment of the district court is reversed and remanded.

FACTS

Voyles is the biological father of C.C. (female; born 1993) and the stepfather of E.F. (female; born 1992). Thelma Voyles (Thelma), Marshall Voyles' wife, is the biological mother of E.F.

After the stepsisters, 9-year-old C.C. and 10-year-old E.F., returned home from school on October 8, 2002, they gave Thelma a letter. It stated: "I need to tell you something about dad. We wanted to tell you before but we were scared. He is makeing [sic] us do you know whate [sic]." After reading the letter, Thelma asked the girls for clarification; they responded that Voyles was "making them suck his [penis]." According to Thelma, E.F. had written the letter.

Greatly concerned about the allegations, later that day Thelma sought the advice of her aunt, Sheila Miller. Thelma showed Miller the letter and disclosed the girls' description of what Voyles did. Miller then asked the girls about the incidents. According to Miller, they explained that Voyles made them perform oral sex on him at five different locations. They also told Miller that they performed oral sex on Voyles to get out of being punished, to get out of doing chores, and to get ice cream.

Approximately 1 month later, on November 11, 2002, John Theis, a social worker and therapist at Horizons Mental Health Center in Hutchinson, conducted a sexual abuse evaluation of the girls. He first interviewed 10-year-old E.F., Voyles' stepdaughter. During the videotaped interview, she told Theis that Voyles made her perform oral sex on him two or three times. E.F. described the act of oral sex and stated that the incidents took place in their house in Norwich — in Voyles' bedroom and on a couch in the living room. According to E.F., one of the incidents occurred when she and C.C. got into trouble. She told Theis that she also saw C.C. perform oral sex on Voyles. E.F. explained that she or C.C. would play on the computer while the other performed oral sex on Voyles. E.F. stated that the incidents occurred after the 4th of July but before school started during the summer of 2002.

Theis then interviewed 9-year-old C.C., Voyles' biological daughter. While E.F. had said E.F. performed oral sex on Voyles two to three times, during C.C.'s videotaped interview C.C. told Theis that Voyles made her perform oral sex on him three or four times. Like E.F., she mentioned as locations the bed in his bedroom and the couch in her house, i.e., in the living room. She also mentioned, however, his truck and her grandmother's house. She further stated that the first incident occurred on the couch in her house. Like E.F., C.C. told Theis that she played on the computer while E.F. performed oral sex on Voyles, and then the girls switched. Following one or two of the incidents, Voyles gave each girl a dollar. C.C also indicated that the incidents occurred during the past summer; however, she believed the incidents occurred prior to the 4th of July. She said that once in Voyles' truck, he had touched C.C. and E.F. on the clothing covering their privates.

The next month the State charged Voyles with four counts of aggravated criminal sodomy and four counts of aggravated indecent solicitation of a child. The complaint initially alleged that the incidents occurred on or about August 2002. However, at trial, the district court granted the State's request to amend the complaint to allege that the incidents occurred between June and August 2002.

Miller testified at trial on behalf of the State. She stated that the girls told her they had performed oral sex upon Voyles and that the conduct occurred at five locations:

"One of them happened in their mom's own bed. One happened in the front room when they were — one was on the computer and one was doing him and then when they got done the other one got to play on the computer. One time in the truck, one time at the café and one time at their grandma's house."

Theis also testified for the State, but the specifics of his knowledge of the episodes were primarily established by the playing of the girls' videotaped interviews for the jury. Additionally, both C.C. and E.F. testified.

C.C. testified somewhat differently from her earlier accounts, i.e., to Miller and later to Theis. While she again stated that there were three or four incidents, she also testified that the incidents occurred only in their house or in Voyles' pickup truck, i.e., not at her grandmother's house or at a café.

According to C.C., the first incident occurred in the living room of their home in Norwich. She and E.F. had been grounded, and Voyles made them perform oral sex on him to get out of trouble. C.C. stated that on another occasion, after each girl performed oral sex on Voyles, he gave them each a dollar to buy snacks.

E.F.'s trial testimony did not provide details of the alleged incidents. She did indicate, however, that she told both Miller and Theis the truth.

Voyles testified and denied that he ever asked C.C. or E.F. to perform oral sex on him.

The jury found Voyles guilty on all eight counts: for each girl, two counts of aggravated indecent solicitation of a child and two counts of aggravated criminal sodomy. After the district court denied Voyles' motion for mistrial and directed verdict of acquittal, it ordered him to serve a controlling prison sentence of 248 months.

The Court of Appeals affirmed in State v. Voyles, 34 Kan.App.2d 110, 116 P.3d 720.

ANALYSIS

Issue 1: The district court's failure to provide a unanimity instruction was reversible error.

Voyles alleges that his constitutional right to a unanimous jury verdict was violated when the district court failed to give a unanimity jury instruction, i.e., the jury was not told to unanimously agree upon the specific act which constituted each count. The State responds that the error was harmless. Both sides cite State v. Hill, 271 Kan. 929, 26 P.3d 1267. Our analysis of this issue involves several steps.

The threshold question is whether we are presented with a multiple acts case. If not, Voyles' argument fails. As we stated in State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 (2005):

"`In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. . . . [Citations omitted.] Whether a case is a multiple acts case is a question of law over which this court has unlimited review. [Citation omitted.]' State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). The threshold question in a multiple acts analysis is whether the defendant's conduct is part of one act or represents multiple acts which are separate and distinct from each other. [Citation omitted.]" (Emphasis added.)

We agree with the Court of Appeals that we are presented with a multiple acts case. Voyles' conduct involved different times — occurring over a several-month period during the summer of 2002 — and different locations, demonstrating acts which are separate and distinct from each other. Indeed, accepting the girls' videotaped statements that one act of solicitation, followed by one act of aggravated sodomy, was performed at several locations on each girl, and accepting Miller's testimony that the girls told her of incidents at five different locations, then potentially 20 different acts or offenses were committed; Voyles was charged with but eight counts.

After determining that we are dealing with a multiple acts case, the second question is whether error was committed. If not, Voyles' argument obviously fails at this stage. In a multiple acts case we require that "either the State must inform the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act." (Emphasis added.) State v. Dean, 272 Kan. 429, 439, 33 P.3d 225 (2001).

We agree with the Court of Appeals that error was committed. The record...