State v. Voyles

• Decision Date: 15 July 2005
• Docket Number: No. 92,030.,92,030.
• Citation: 116 P.3d 720
• Parties: STATE of Kansas, Appellee, v. Marshall M. VOYLES, II, Appellant.
• Court: Kansas Supreme Court

Page 720

116 P.3d 720

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

No. 92,030.

Court of Appeals of Kansas.

July 15, 2005.

COPYRIGHT MATERIAL OMITTED

Shawn Minihan, assistant appellate defender, of Topeka, for appellant.

Bradford L. Williams, county attorney, and Phill Kline, attorney general, for appellee.

Before GREENE, P.J., PIERRON and BUSER, JJ.

GREENE, P.J.

Marshall M. Voyles, II, appeals his convictions on four counts of aggravated criminal sodomy and four counts of aggravated indecent solicitation of a child, arguing that the court erred in failing to give a jury unanimity instruction and challenging the constitutionality of K.S.A. 21-3506(a)(1) and K.S.A. 21-3511(a). We affirm the convictions and reject the constitutional challenge.

Factual and Procedural Background

On October 8, 2002, C.C. (then age 10) and E.F. (then age 9) gave a letter to Thelma, their mother/step-mother respectively, stating: "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]." When Thelma asked the girls for clarification, they responded that their dad (defendant Voyles) was "making them suck his thing."

Later that day, Thelma took the girls to visit her aunt and disclosed to her the girls' letter and description of what Voyles did. The aunt then talked to the girls about the incidents, and the girls explained to her that Voyles made them perform oral sex on him. The girls indicated the incidents occurred in their mother's bed, in the front room of their house, in their dad's truck, at a café, and at their grandmother's house. Additionally, the girls indicated they had performed oral sex on Voyles to get out of being punished, to get out of doing chores, and to get ice cream.

Subsequently, John Theis, a social worker and therapist at Horizons Mental Health Center, conducted sexual abuse evaluations of the girls. E.F. told Theis that Voyles made her perform oral sex on him two or three times. E.F. described the act of oral sex in detail and stated the incidents occurred in Voyles' bedroom and in the living room of their house in Norwich. E.F. explained that sometimes she or C.C. would play on the computer while the other one performed oral sex on Voyles. E.F. said the incidents had occurred during the summer.

In C.C.'s separate interview with Theis, she explained that Voyles made her perform oral sex on him in his truck, on his bed, and at her grandmother's house. C.C. described the act of oral sex in detail and said Voyles made her perform oral sex on him three or four times. C.C. said the first incident occurred on the couch in the living room of her house. C.C. also told Theis that she played on the computer while E.F. performed oral sex on Voyles, and vice versa. Following one or two of the incidents, Voyles gave her and E.F. each a dollar. Like E.F., C.C. said the incidents had occurred during the summer.

The State charged Voyles with four counts of aggravated criminal sodomy, in violation of K.S.A. 21-3506(a)(1), and four counts of aggravated indecent solicitation of a child, in violation of K.S.A. 21-3511(a). The complaint initially alleged the incidents occurred on or about August 2002, but the trial court later granted the State's request to amend the complaint to allege the incidents occurred between June 2002 and August 2002.

The jury found Voyles guilty of all counts. Voyles filed motions for mistrial and directed verdict of acquittal; both motions were denied. On January 2, 2004, the trial court ordered Voyles to serve a controlling prison sentence of 248 months.

Voyles timely appeals.

Was the District Court's Failure to Give a Unanimity Instruction Clearly Erroneous?

Since Voyles did not request a unanimity instruction, we review his challenge for clear error. See K.S.A.2004 Supp. 22-3414(3); State v. Banks, 273 Kan. 738, 743-44, 46 P.3d 546 (2002). A jury instruction error is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. 273 Kan. at 744, 46 P.3d 546.

A criminal defendant in Kansas has a fundamental right to jury unanimity. See K.S.A. 22-3421 and K.S.A. 22-3423(1)(d). Where several acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in such cases, our Supreme Court has required that either (i) the State elect the particular criminal act upon which it will rely for conviction or (ii) the trial court instruct the jury that all of the jurors must agree that the same underlying criminal act has been proved without a reasonable doubt. See State v. Carr, 265 Kan. 608, 618, 963 P.2d 421 (1998). The pattern jury instructions for Kansas contain a specific instruction for use in such cases. See PIK Crim.3d 68.09-B (multiple acts).

According to the initial charging document, the four counts each of aggravated criminal sodomy and aggravated indecent solicitation of a child included two incidents with each child victim, with each incident involving both a solicitation and a subsequent sodomy; one incident "in Norwich," and one incident "in a pickup truck." The problem is that the evidence at trial included reference to more than two such incidents with each child; in fact, scrutiny of the record reveals that there was reference to at least "two or three" such incidents involving E.F. and at least "three or four" such incidents involving C.C. The family member who first talked to the girls about these events testified that the girls described the incidents as occurring to each of them in as many as five separate locations, and it was never established which of those locations were in Norwich.

In order to determine whether the State made an election as to the particular criminal acts relied upon, we analyze: (i) the original complaint, (ii) the opening statement and closing arguments of the prosecutor, and (iii) the totality of the jury instructions. See Banks, 273 Kan. at 745-46, 46 P.3d 546. Based upon this analysis, we are unable to conclude that there was an election made by the State. As noted above, the original complaint identifies only that there were two incidents involving C.C. and two incidents involving E.F., occurring in Norwich and in a pickup without any specificity of time, place, date, or precise events, except (as amended) that the acts occurred between June and August 2002.

The opening statement and closing argument of the prosecutor generally referenced several incidents but also focused on incidents occurring in the house and in the truck, without any specificity as to either, and the girls identified at least two separate locations in their house and additional acts in their grandmother's house. Moreover, as to the incidents in the girls' house, the prosecutor never distinguished between the incidents in the bedroom and the incidents in the living room.

The jury instructions stated that to establish that Voyles committed the crimes of aggravated criminal sodomy as to both C.C. and E.F., the State must prove: (1) Voyles engaged in sodomy with a child under age 14, and (2) this act occurred on or about June-August 2002, in Kingman County, Kansas; and to establish that Voyles committed the crimes of aggravated indecent solicitation of a child as to both C.C. and E.F., the State must prove: (1) Voyles solicited to commit the act of aggravated criminal sodomy, (2) the child was then a child under age 14, and (3) this act occurred on or about June-August 2002, in Kingman County, Kansas.

In oral argument before this court, the State was unable to indicate with any precision whatsoever which acts were relied upon for each of the criminal counts or convictions. Clearly, this was a multiple acts case but we are not satisfied that there was an election made by the State and there was no specific jury instruction as to unanimity; thus, the requirements of our Supreme Court to ensure jury unanimity were not met.

The more difficult question is whether the district court's failure to give a unanimity instruction was clear error entitling Voyles to a new trial. The proper analysis to make this determination has been problematic. See, e.g., Ediger, Elect or Instruct: Preventing Evidence of Multiple Acts from Threatening Juror Unanimity in Criminal Trials, 74 J.K.B.A. 28 (May 2005); Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Cases in Kansas, 44 Washburn L.J. 275 (2005).

In State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001), our Supreme Court adopted a two-step harmless error analysis:

"In applying a two-step harmless error analysis, the first step is to decide whether there is a possibility of jury confusion from the record or if evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court's instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by `a fresh impulse.' When jury confusion is not shown under the first step, the second step is to determine if the error was harmless beyond a reasonable doubt with respect to all acts."

Faithfully applying the Hill two-step analysis, we must first determine whether there is a possibility of juror confusion or evidence showing either legally or factually separate incidents. See 271 Kan. at 939, 26 P.3d 1267. Here, there is little difficulty discerning that each of the multiple sexual acts described within the evidence occurred at different times within a 3-month period and each was motivated by a fresh impulse, thus establishing that particular...