State v. Waggoner

• Decision Date: 12 April 2013
• Docket Number: No. 105,215.,105,215.
• Citation: 297 Kan. 94,298 P.3d 333
• Parties: STATE of Kansas, Appellee, v. Mark D. WAGGONER, Appellant.
• Court: Kansas Supreme Court

297 Kan. 94

298 P.3d 333

STATE of Kansas, Appellee,

v.Mark D. WAGGONER, Appellant.

No. 105,215.

Supreme Court of Kansas.

April 12, 2013.

Syllabus by the Court

1. Because the phrase “either the child or the offender, or both” in K.S.A. 21–3504(a)(3)(A) does not state material elements of the crime of aggravated indecent liberties with a child but merely outlines options within a means, a jury instruction reiterating these options does not include alternative means of committing the charge of aggravated indecent liberties.

2. A jury instruction is not favored but is not erroneous if it states: “If you have a reasonable doubt as to the truth of any of the claims made 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 made by the State, you should find the defendant guilty.”

3. A sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.

4. Although lifetime electronic monitoring is mandated by K.S.A.2012 Supp. 22–3717(u), the sentencing court does not have the authority to impose parole conditions.

Lydia Krebs, of Kansas Appellate Defender Office, was on the briefs for appellant.

Thomas E. Knutzen, assistant county attorney, Robert A. Fox, former county attorney, Jason W. Belveal, county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

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

A jury convicted 58-year-old Mark D. Waggoner of one count of aggravated indecent liberties with a child under the age of 14, in violation of K.S.A. 21–3504(a)(3)(A). Because this qualifies as a Jessica's Law case, the trial court sentenced Waggoner to life imprisonment with a mandatory minimum term of imprisonment of not less than 25 years. See K.S.A. 21–4643(a)(1) (C). From the bench, the court also imposed “lifetime parole with lifetime electronic monitoring.” The court's oral pronouncement differs from the sentencing journal entry, which indicates that, in addition to a hard 25 sentence, Waggoner was sentenced to lifetime postrelease supervision and lifetime electronic monitoring.

Waggoner appeals, and this court has jurisdiction under K.S.A.2012 Supp. 22–3601(b)(1) (maximum sentence of life imprisonment imposed; sentence imposed prior to repeal of K.S.A. 21–4643 on July 1, 2011). He raises two issues attacking his conviction. First, he contends the jury was instructed on alternative means of committing aggravated indecent liberties with a child and, because the trial court did not give a unanimity instruction, he was denied his right to a unanimous verdict. Second, he takes issue with language in the burden of proof jury instruction that he contends violated his constitutional right to have a jury determine whether the State had met its burden of proving his guilt beyond a reasonable doubt. Both of these contentions have been rejected in recent decisions of this court. Consequently, we affirm Waggoner's conviction.

Additionally, Waggoner raises two sentencing issues, arguing the sentencing court erred in imposing lifetime electronic monitoring and the sentencing journal entry incorrectly reflects that the sentencing court imposed postrelease supervision rather than parole. Waggoner is correct that he is entitled to relief on both of these aspects of his sentence as that sentence is reflected in the journal entry.

Alternative Means Are Not Stated

Waggoner first challenges his conviction for aggravated indecent liberties with a child, claiming the jury instructions presented alternative means of committing the crime and the State failed to present sufficient evidence of each means. See State v. Wright, 290 Kan. 194, 206, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289–90, 875 P.2d 242 (1994). The crime of aggravated indecentliberties is set out at K.S.A. 21–3504(a)(3)(A) and is defined in relevant part as: “Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.” In this case, the statutory requirements were incorporated into the jury instruction regarding the charge of aggravated indecent liberties. In relevant part, the instruction informed the jury that to find Waggoner guilty it must find that he “fondled or touched the person of [the victim] in a lewd manner, with the intent to arouse or to satisfy the sexual desires of either [the victim] or the defendant, or both.”

Waggoner argues that this instruction requires the State to present evidence that he acted with the intent to arouse or satisfy both his sexual desires and the victim's sexual desires. He reasons that because the State presented no evidence that he acted with the intent to arouse or satisfy the victim's sexual desires, the State necessarily failed to present sufficient evidence of each of the alternative means upon which the trial court instructed the jury.

This court recently rejected this argument in State v. Brown, 295 Kan. 181, 202, 284 P.3d 977 (2012), holding that the phrase “either the child or the offender, or both” under K.S.A. 21–3504(a)(3)(A) does not state a material element of the crime but merely describes a secondary matter, the potential yet incidental objects of the offender's required intent to arouse or to satisfy sexual desires. Thus, the phrase outlines options within a means, and describes factual circumstances that may prove the distinct, material mental state element of the crime. See State v. Britt, 295 Kan. 1018, 1026, 287 P.3d 905 (2012) (aggravated indecent liberties case following Brown ); State v. Burns, 295 Kan. 951, 287 P.3d 261 (2012) (same).

Because the phrase “either the child or the offender, or both” in K.S.A. 21–3504(a)(3)(A) does not state material elements of the crime, but merely outlines options within a means, the jury instruction reiterating these options did not include alternative means of committing the charge of aggravated indecent liberties. The jury, following the instructions given in this case, had to unanimously agree that Waggoner possessed the culpable mental state of an intent to arouse or satisfy sexual desires. Waggoner concedes that circumstantial evidence allowed the jury to infer that he acted with the intent to satisfy his own sexual desires.

Consequently, Waggoner is not entitled to the reversal of his conviction for aggravated indecent liberties with a child based on his alternative means argument.

Reasonable Doubt Instruction Was Not Erroneous

Waggoner next contends for the first time on appeal that Instruction No. 2, the reasonable doubt instruction, was erroneous and violated his constitutional rights, which resulted in structural error.

Instruction No. 2, which was identical to the pre–2005 version of Pattern Jury Instructions (PIK) Crim.3d 52.02, stated:

“The State [h]as the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.

“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made 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 made by the State, you should find the defendant guilty.” (Emphasis added.)

See PIK Crim.3d 52.02 (1995 Supp.).

At trial, Waggoner did not object to the use of this instruction, and, in fact, defense counsel specifically stated during the instruction conference: “I have no objection to any of the instructions proposed by the Court.” As such, our standard of review is informed by K.S.A. 22–3414(3) and State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012) (appellate analysis of a jury instruction issue requires [1] determination of whether the issue can be reviewed, [2] whether error occurred, and [3] whether the error requires reversal). Under K.S.A. 22–3414(3), the failure to object to an instruction does not prevent appellate review but requires a determination that the instruction is clearly erroneous before relief can be granted. Because the lack of objection does not bar our consideration of Waggoner's arguments, we turn to the question of whether there was error, i.e., whether the subject instruction was legally and factually appropriate. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195.

On appeal, in arguing the instruction was not legally appropriate, Waggoner focuses on the second paragraph and asserts that the trial court erred by using the word “any” in both portions of the instruction. Instead, Waggoner contends “each” should have been substituted for the second “any,” which would make the last sentence read as follows: “[I]f you have no reasonable doubt as to the truth of each of the claims made by the State, you should find the defendant guilty.” (Emphasis added.) It is Waggoner's contention that the instruction is not legally appropriate, because the second use of the word “any” caused the State's burden of proof to be diluted and, therefore, his constitutional rights—the requirement of proof beyond a reasonable doubt under the Fifth Amendment to the United States Constitution and the right to a jury trial under the Sixth Amendment—to be violated. In support of his argument, Waggoner relies heavily on Miller v. State, No. 103,915, –––Kan.App.2d ––––, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), rev. granted March 4, 2013.

As correctly observed by Waggoner, in 2005 the pattern instruction committee changed the PIK instruction used in this case from the any/any language to the any/each language Waggoner argues is constitutionally necessary. The amendment was in response to the Court of Appeals' decision in State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233,rev. denied 278...