Opinion
No. 106,207.
2013-05-17
STATE of Kansas, Appellee, v. Jeanette LAWRENCE, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier and Jacob M. Gontesky, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier and Jacob M. Gontesky, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Ava Patrick, age 18 months, died while she was in the care of Jeanette Lawrence. Lawrence operated a registered family daycare from her home. The State determined that Ava died of strangulation when she, left unattended, lodged her head and neck between the pickets of a fence in the basement of Lawrence's home. Lawrence was charged with reckless involuntary manslaughter, aggravated endangerment of a child, and operating a registered family daycare in violation of Kansas law. She was convicted by jury of the three counts charged. She appeals the convictions and her sentences.
On appeal Lawrence claims the trial court erred (1) when it admitted evidence of prior civil wrongs concerning citations she had received for exceeding her daycare's permitted capacity of children; (2) in giving, over Lawrence's objection, a jury instruction from PIK Crim.3d 51.10 that includes the language “your only concern in this case is determining if the defendant is guilty or not guilty”; (3) when it allowed cameras into the courtroom to record closing arguments; (4) committing cumulative error requiring reversal; (5) in finding it was required by statute to impose the aggravated endangerment sentence to be served consecutive to the involuntary manslaughter sentence; and, (6) in sentencing Lawrence to the aggravated terms in the applicable grid boxes for her two felony convictions. We affirm the three convictions. The State concedes, and we agree, that the trial court was not required to impose consecutive sentences; but rather, it had discretion to impose concurrent or consecutive sentences, so we vacate the sentences and remand for resentencing.
Factual and Procedural Background
Steven and Alecia Patrick wanted their 18–month–old daughter Ava to have daycare in a learning environment. Alecia learned of Lawrence's daycare, phoned her, and, after a 2–hour conversation, arranged to visit the Lawrence in-home facility. The Patricks met with Lawrence for 1 1/2 to 2 hours, during which Lawrence went over the curriculum and the Patricks inspected the home, including the classroom-like basement, and viewed the back-yard playground. The Patricks felt comfortable and agreed to place Ava in Lawrence's care for $150 per week.
Steven delivered Ava for her first day at the daycare at around 7:30 a.m. on April 13, 2009. At about 11:27 a.m. that morning, the Olathe Police Department dispatched Officer Brent Kiger to Lawrence's residence in response to a 911 call regarding a nonbreathing child. Upon his arrival Officer Kiger observed Lawrence giving CPR to Ava in the kitchen. When Officer Kiger asked Lawrence what happened, Lawrence told him that Ava's “eyes roll[ed] back in her head, and she fell straight back and hit her head on the floor.”
Minutes later, Johnson County Med–Act arrived on the scene. When Jeffrey Michael Boss, a paramedic with Med–Act, made contact with Ava, he noticed signs of lividity, a condition that occurs when, due to prolonged cardiac arrest, blood no longer circulates but begins to pool in the lowest areas of the person's body. Boss stated that lividity indicates that the patient is no longer viable for resuscitation because there has been no circulation of blood to the critical organs, including the brain. Boss triaged Ava as a “code black” or nonviable patient. However, shortly after he did so, he heard a “female voice” state, “She was alert two to three minutes ago.” Although this claim did not fit Ava's clinical presentation, Boss then continued his resuscitation efforts.
Med–Act transported Ava to the Olathe Medical Center. Dr. Stephanie Evers, M.D., an emergency medicine physician, assumed Ava's care. According to Dr. Evers, EMS personnel informed her that the “daycare provider” claimed Ava had been “trapped on a fence; that she had been able to be freed, was acting appropriately, and then came running into the kitchen and then collapsed right in front of her.” Upon examination, however, Dr. Evers observed that Ava had trauma to her head area, mottling around her neck, hands, and feet, areas of lividity, with a body temperature that had dropped to 94 degrees. Dr. Evers testified that the presence of mottling suggests there has been no blood circulation to the affected region of the body, that lividity “usually indicates that someone has been down for at least about 30 minutes,” and that a person's body temperature generally does not begin to drop “until about an hour or so” after death. Dr. Evers opined that Ava's condition was not consistent with the history provided to EMS personnel, as it appeared Ava had been “down for some period of time.” Dr. Evers indicated that the trauma present on Ava's head was consistent with the report of her being trapped “in a fence divider.” Dr. Evers told the Patricks she had worked on Ava for more than an hour but that Ava did not make it.
Dr. Michael S. Handler, a forensic neuropathologist, performed an autopsy on Ava. Dr. Handler testified that he saw no indication that Ava had any preexisting conditions that would have contributed to her death. Dr. Handler opined that the cause of Ava's death was strangulation. He labeled the manner of her death as an “accident,” as opposed to homicide, suicide, or natural. According to Dr. Handler, Ava had injuries consistent with being caught in a fence, such as linear abrasions on both sides of her neck and petechial hemorrhages around her eyelids. He opined that Ava died while trapped in the fence and that she probably expired after 4 to 14 minutes. Dr. Handler did not believe that Ava was removed from the fence and walking around 30 seconds to a minute later.
Lawrence provided the authorities with several accounts of the events which led to Ava's death. At around noon on April 13, 2009, Detective Ed Drake of the Olathe Police Department interviewed Lawrence at her home. According to Detective Drake, Lawrence told him that Ava got stuck “for a few seconds” on a “picket fence that she had installed down in the basement.” Lawrence saw a small child-size chair next to the fence, and she assumed Ava used this chair to climb on the fence. Lawrence immediately removed Ava from the fence and examined her. Because Ava was “ ‘breathing, [and] appeared fine,’ “ Lawrence put Ava on the ground and observed her for “a few more seconds.” Ava continued to appear “fine,” so Lawrence attended to some of the other children. About 30 minutes to an hour later, however, Lawrence observed Ava “standing in the room kind of independently and saw her eyes roll back into her head.” According to Lawrence, Ava looked like “she was going to explode,” and she proceeded to fall backwards to the floor. Lawrence ran to Ava, began CPR, and yelled for her daughter to call 911.
On April 14, 2009, Nancy Johnson, a childcare licensing surveyor for the Johnson County Health Department, contacted Lawrence to investigate Ava's death. Lawrence told Johnson that Ava was sitting on a chair watching a video while she was helping another child pick up a toy approximately 5 feet from Ava's location. Lawrence said she had her back to Ava, and when she turned around at about 11:30 a .m., she saw Ava standing on a chair with “her neck or head ... lodged in between [the] slats on the fence.” Lawrence immediately went over to free Ava. After removing her from the fence, Lawrence heard “some kind of sound coming from [Ava's] throat,” but it was “nothing that made her say, ‘Oh, my God.’ “ Lawrence put Ava on her hip “to check her out” and, when she did so, Ava's head “hobbled a little bit.” Lawrence then decided to see if Ava could stand. When she put Ava on the ground, Ava “bent down to pick up a green toy telephone.” Lawrence decided to go upstairs and get Ava a drink. After climbing only three to four stairs, Lawrence looked back at Ava and noticed that Ava's color had changed to “[a] purple or blue color,” Ava's head “looked like it was going to explode and ... she looked zombie like.” Then, Ava's “eyes started to roll in the back of her head” and she fell straight backwards onto her head.
Finally, on April 24, 2009, Detective Drake conducted another interview with Lawrence. During this interview Lawrence told Detective Drake that on the day of Ava's death she was downstairs in the basement with Ava and several of her daycare children. Lawrence said that one of the children had a nosebleed that morning, so she went upstairs to get some wet paper towels. When she returned to the basement she cleaned up the child, wiped up the floor, and sat down to assist some of the children with a toy. Lawrence estimated that this entire task took her approximately 10 minutes. She said that, prior to the child's nosebleed, Ava was sitting on a chair playing with a “water baby.” Shortly after sitting down to help with the toy, Lawrence glanced over at Ava and saw her standing on the chair with her head stuck in the picket fence. Lawrence immediately freed Ava and checked her for signs of injury. Ava seemed fine, so Lawrence set her down on the floor to see if she could stand and walk. When Ava stood by herself, Lawrence decided to get her a drink, but before she made it all the way up the stairs, she witnessed Ava's eyes roll back in her head and she fell backwards to the floor.
In addition to the inconsistencies present in Lawrence's statements, the testimony provided by Cassandra Lawrence, Lawrence's adult daughter, and Donna Lawrence, Lawrence's mother-in-law, further called Lawrence's accounts of what happened into question. Cassandra testified that at approximately 11 a.m. that morning she was in the living room with several of the daycare children. Lawrence was upstairs in the kitchen making lunch, a task which usually took Lawrence 20 minutes. At some point, Cassandra heard Lawrence yelling her name from the basement. When Cassandra went far enough down the stairs to see into the basement, she observed Lawrence performing CPR on Ava. Cassandra called 911, then took eight of the children from the daycare next door to the home of Shannon Mullins.
Donna testified that, on the morning of Ava's death, Lawrence called her at around 9 or 9:30 a.m. Their conversation lasted for approximately 2 hours. She recalled that Lawrence said she had a new daycare child that day in addition to other older children. At no point during the conversation did Donna hear children in the background. When Donna asked Lawrence who was watching the daycare, Lawrence responded, “ ‘Well, [Cassandra]'s had the babies upstairs.’ “
Two days after Ava's death, on April 15, 2009, Johnson served Lawrence with an emergency order of suspension instructing her to immediately cease providing childcare. During her investigation, Johnson discovered that Lawrence had been exceeding her capacity on the day of Ava's death. The Kansas Department of Health and Environment (KDHE) determined that her daycare children needed to be “protected from child abuse or detrimental harm.” The State's evidence was that there were 14 children at the Lawrence home at the time of Ava's injury, 8 more children than the maximum of 6 Lawrence was permitted to have in her care.
As evidence that Ava's death occurred as a result of Lawrence's recklessness rather than as a mere accident, the court allowed the State to admit a book Lawrence had written entitled, “ ‘Your Child's Daycare. Everything You Need To Know From Start To Finish.’ “ The text of the book advises parents to inspect the daycare facility to make sure the provider is not exceeding capacity, warning that “the quality of care decreases as the number of children cared for increases.”
Over Lawrence's continuing objection, the State introduced evidence of Lawrence's prior capacity violations. Rachel Berroth, the acting director for the Early Care and Youth Program for the State of Kansas Child Care Licensing Program, testified that during Lawrence's 23 years as a daycare provider, Lawrence had been cited five times for exceeding capacity. According to Berroth, the KDHE classifies a capacity violation as a serious and high-risk offense “due to the direct impact to the health and safety of the children.” Berroth explained that the presence of additional children negatively impacts a provider's ability to supervise adequately, to attend to a child who's in need, to know where they are at all times, and to respond because the provider is tied up with other children in care.
Berroth testified that Lawrence received her first citation on June 26, 1989, because she had eight children present in her care, which exceeded her capacity by two. Lawrence did not have “an explanation.” On August 21, 1989, Lawrence again exceeded her capacity by having eight children rather than her allotted six. In response, Lawrence apparently told the KDHE that she believed “someone was out to get her, and she would not stop providing childcare simply because of these complaints.” Lawrence received her third citation on April 16, 1991, because she had one child too many in the preschool-age category; Lawrence did not have an explanation. The KDHE issued Lawrence her fourth citation on August 30, 1995, for exceeding her capacity by one child in the preschool-age category; again, Lawrence did not provide an explanation. Lawrence's fifth violation occurred on July 25, 1996. On July 24th, the KDHE made an unannounced visit to Lawrence's home; however, when Lawrence answered the door, she told the surveyors that the “provider was not home and ... was not providing childcare.” The surveyors subsequently conducted surveillance of Lawrence's residence and they identified eight children leaving her home. Consequently, the surveyors returned on July 25 and discovered that Lawrence had seven children present in her home, which exceeded her capacity in the preschool-age category by one child. Lawrence told the surveyors that she was not providing childcare and “four of the children were there because her husband had sofltball children present.”
The jury found Lawrence guilty of involuntary manslaughter, aggravated endangering a child, and operating a registered family daycare home while the number of children present exceeded capacity. On December 17, 2010, the district court imposed the aggravated sentence of 34 months for Lawrence's involuntary manslaughter conviction and 7 months for her aggravated endangering a child conviction. The district judge ordered Lawrence's aggravated endangering sentence to run consecutive to the involuntary manslaughter sentence for a total prison term of 41 months. The court stated that “a special rule” concerning aggravated child endangerment sentencing obligated the court to impose consecutive sentences for the felonies. Lawrence subsequently filed this timely appeal.
Admission ofK.S.A. 60–455Evidence
Lawrence contends that the district court erred in admitting evidence of her previous capacity violations under K.S.A. 60–455. The State asserts that the district court properly admitted this evidence under the knowledge exception to K.S.A. 60–455 because the evidence was relevant to demonstrate that Ava's death was the result of Lawrence's reckless conduct rather than a mere accident.
K.S.A. 60–455 states in part that “Subject to K.S.A. 60–447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.” However, it also provides that such evidence is admissible “when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
In State v. Hollingsworth, 289 Kan. 1250, 1258, 221 P.3d 1122 (2009), our Supreme Court succinctly explained the proper analytical steps that are required when considering the admissibility of evidence of prior wrongs:
“Determining whether evidence was properly admitted pursuant to K.S.A. 60–455 requires several steps. State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). The court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, the court must determine whether the fact “ ‘has a legitimate and effective bearing on the decision of the case.’ “ State v. Garcia, 285 Kan. 1, 14, 169 P .3d 1069 (2007). Our standard of review for materiality is de novo. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008).
“The court must also determine whether the material fact is disputed. Reid, 286 Kan. at 505;Garcia, 285 Kan. at 14 (“ ‘[T]he element or elements being considered ... must be substantially at issue in the case.’ ”). The court must also determine whether the evidence is relevant to prove the disputed material fact, i.e., whether it has ‘any tendency in reason to prove’ that fact. K.S.A. 60–401(b); Reid, 286 Kan. at 505. This court reviews relevance—in particular, the probative element of 60–455—for abuse of discretion. Reid, 286 Kan. at 507.
“The court must next determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. Reid, 286 Kan. at 503. Our standard for reviewing this determination is also abuse of discretion. Reid, 286 Kan. at 512 (citing Garcia, 285 Kan. at 18). Finally, if the presented evidence meets all of these requirements, then the trial court must give a limiting instruction ‘informing the jury of the specific purpose for [the evidence's] admission.’ Garcia, 285 Kan. at 12 .”
As Lawrence acknowledges in her brief, her defense at trial was that Ava's death “was an unfortunate accident.” The State argued that the K.S.A. 60–455 evidence of prior citations for exceeding capacity showed Lawrence's knowledge that having in excess of six children in her care constituted a risk which Lawrence disregarded, leading to Ava's death. Lawrence essentially concedes that the evidence was relevant to prove a material fact, i.e., knowledge, the first step in the K.S.A. 60–455 analysis. We are persuaded that this evidence of prior disregard for the risks involved in exceeding capacity does have a legitimate and effective bearing on the decision of the case.
However, Lawrence contends in her brief that her knowledge of her capacity limit was not in dispute because her “defense at trial was not that she did not know she was not allowed to have more than six children in her day care at a time. It was not that she was not aware of the day care regulations.” These contentions concern the next step in the analysis: Is the otherwise material fact in dispute? Again, Lawrence's defense was that Ava's death was an unfortunate accident.
Involuntary manslaughter, as it applies to Lawrence, “is the unintentional killing of a human being committed ... [r]ecklessly ... [or] during the commission of a lawful act in an unlawful manner.” K.S.A. 21–3404(a), (c). Thus, recklessness is one of the elements the State needed to establish to prove Lawrence committed the offense of involuntary manslaughter. See K.S.A. 21–3404(a). Similarly, the State also needed to prove that Lawrence acted recklessly in order to establish the offense of aggravated child endangerment. Applicable here, this offense is defined as “recklessly causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health is injured or endangered.” K.S.A. 21–3608a(2). According to K.S.A. 21–3201(c), “[r]eckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” (Emphasis added.)
Based upon our review of the record, we find that Lawrence's knowledge of the risks involved in capacity violations was indeed in dispute. In fact, as the State asserts, whether Ava's death was the result of Lawrence's reckless conduct or simply an accident “was at the heart of the case.” Simply put, to prove its case beyond a reasonable doubt and counter Lawrence's defense that Ava's death was an “unfortunate accident,” the State needed to show that Lawrence realized the imminent danger associated with overcrowding and the attendant lack of care but consciously and unjustifiably disregarded that danger. See K.S.A. 21–3201(c); K.S.A. 21–3404(a), (c); K.S.A. 21–3608a(2). Thus, despite Lawrence's assertion to the contrary, her defense at trial placed her knowledge directly in dispute.
The next step in the analysis is: Does the probative value of the evidence outweigh the potential for producing undue prejudice? Evidence of other crimes or civil wrongs is unduly prejudicial when it “actually or probably brings about the wrong result under the circumstances of the case.” [Citation omitted.]” Hollingsworth, 289 Kan. at 1259. We review the district court's assessment of this and the previous question for abuse of discretion. State v. Prine, 287 Kan. 713, 726, 200 P.3d 1 (2009). A judicial action constitutes an abuse of discretion
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
The party asserting the district court abused its discretion bears the burden of showing such abuse. State v. Inkelaar, 293 Kan. 414, 425, 264 P.3d 81 (2011).
We find that the district court did not abuse its discretion when it determined that the evidence of Lawrence's prior capacity violations concerned a material disputed fact and was not unduly prejudicial. It was Lawrence's burden to prove an abuse of discretion on these aspects of the test. Lawrence simply claims the nature of this evidence was unduly prejudicial based upon its lack of probative value to prove a fact at issue. We find that this evidence was probative, as it supported the State's claim that Ava died because Lawrence consciously and unjustifiably disregarded the danger associated with exceeding her capacity. Furthermore, as required, the district court provided the jury with the following limiting instruction: “Evidence has been admitted tending to prove that the defendant committed crimes other than the present crime charged. This evidence may be considered solely for the purpose of proving the defendant's recklessness.” Lawrence does not challenge the propriety of the court's limiting instruction. Appellate courts presume that the jury followed the instructions provided by the district court. See State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010). We are not persuaded that the K.S.A. 60–455 evidence admitted actually or probably brought about the wrong result under the circumstances of this case. Lawrence has not shown that the evidence was unduly prejudicial.
In summary, we hold that the district court did not err in admitting evidence of Lawrence's prior civil wrongs under K.S.A. 60–455.
The Use of PIK Crim.3d 51.10
Lawrence contends that the district court improperly diluted the State's burden of proof and violated her constitutional presumption of innocence when it provided the jury with the following instruction, set forth in Instruction No. 6: “ Your only concern in this case is determining if the defendant is guilty or not guilty . The disposition of the case thereafter is a matter for determination by the Court.” (Emphasis added.) Lawrence further asserts that the district court compounded this error when it provided the jury with Instruction No. 7, which she claims provided “contradictory directions to the jury” concerning to the State's burden of proof and the presumption of innocence:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove she is not guilty. You must presume that she is not guilty unless you are convinced from the evidence that she 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 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 each of the claims required to be proved by the State, you should find the defendant guilty.”
Lawrence properly preserved this issue for review, as she objected to the giving of Instruction No. 6 at trial. See K.S.A. 22–3414(3). However, it is not necessary that we separately determine whether Instruction No. 6 and No. 7 are legally appropriate, as that analysis has been recently made by our Supreme Court.
Challenged Instruction No. 6 is taken directly from PIK Crim.3d 51.10. Challenged Instruction No. 7 is taken directly from PIK Crim.3d 52.02. Recently, on April 5, 2013, well after the parties completed briefing, our Supreme Court issued State v. Herbel, 296 Kan. ––––, Syl. ¶ 9, –––P.3d ––––, No. 103,558, 2013 WL 1365348 (2013). In Herbel the court rejected a challenge to the trial court's use of the older, pre–2004 version of PIK Crim.3d 52.02, which states:
“The State has 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 unless you are convinced from 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 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.” (Emphasis added.)
The court held that while the instruction used in Herbel's case was not the preferred, current version of the instruction, it was legally appropriate. 296 Kan. ––––, Syl. ¶ 9. Here the court gave the jury the current version of PIK Crim.3d 52.02 in Instruction No. 7, the preferred version.
Then, on April 12, 2013, our Supreme Court issued State v. Stevenson, 297 Kan. ––––, Syl. ¶ 3, ––––, ––– P.3d ––––, No. 103,508, 2013 WL 1497745, at *7–8 (2012), which essentially holds that regardless of the standard of review employed, “PIK Crim.3d 51.10 ... does not dilute the State's burden of proof and is not erroneous” because “a jury must choose between two options—guilty or not guilty—in order to reach a verdict.” Stevenson challenged PIK Crim.3d 51.10 on the same grounds as Lawrence; in rejecting his argument, our Supreme Court determined that PIK Crim.3d 51.10 and PIK Crim.3d 52.02 provide “accurate statements of the law, are not in conflict, and, when read together, accurately instruct[ ] the jury on the State's burden of proof.” 2013 WL 1497745, at *7–8.
The challenged Instructions No. 6 and No. 7 were proper. Accordingly, because the jury instructions in this case properly and fairly stated the law, we hold that the district court did not erroneously instruct the jury so as to compromise Lawrence's constitutional presumption of innocence or diminish the State's burden of proof.
Media Coverage During Closing Arguments
Lawrence contends that the district court prejudiced her right to a fair trial when it permitted local news media to bring a camera into the courtroom to record closing arguments.
Prior to closing arguments, the district judge informed the parties that the local media wished to bring a camera into the courtroom to record closing arguments. Lawrence objected on the ground that the media's presence would prejudice her case by placing undue pressure on her legal team and the jury, a circumstance that could not be effectively remedied by “a mere admonition to the jury .” The district judge disagreed and overruled Lawrence's objection.
The propriety of a district court's decision to grant or deny the news media permission to record court proceedings involves weighing “the constitutional guaranties of freedom of the press and the defendant's right to a public trial” against “the due process rights of the defendant and the power of the courts to control their proceedings in order to permit the fair and impartial administration of justice.” State v. Ji, 251 Kan. 3, 32, 832 P.2d 1176 (1992). The defendant's due process rights are not “inherently denied by television trial coverage, and no per se constitutional rule prohibits permitting broadcast or photographic coverage of criminal proceedings.” 251 Kan. at 32. Accordingly, “[w]here a trial court permits photographic, audio, and television reproduction of the trial proceedings, the defendant has the burden to prove prejudice by showing that media coverage prevented the defendant from presenting his [or her] defense or in some way affected the ability of the jury to judge defendant fairly. [Citation omitted.]” 251 Kan. at 32.
Yet, as the State asserts, other than a generalized concern that the media's “sudden presence” would unduly influence the jury, Lawrence does not provide any specific explanation as to how the coverage prejudiced her right to a fair trial. Furthermore, we are unable to discern how the media's presence during closing arguments prejudiced Lawrence's due process rights. Whether broadcast or photographic coverage of criminal trials violates the defendant's constitutional rights depends upon the circumstances under which such coverage takes place. State v. McNaught, 238 Kan. 567, 574–75, 713 P.2d 457 (1986). Significantly, at the end of the first day of trial, the district judge provided the following admonition to the jury, “Let me give you a very serious admonition over the evening recess. I know the media has been out here at the courthouse, and they are probably covering this story. I'm going to direct that you do not watch or listen or read any media accounts of this case.” Thus, we believe it is unlikely the jury was surprised to see the media or unduly influenced by their presence, as the media had been covering the trial from outside the courtroom from the onset. Moreover, there is nothing in the record to suggest the media disrupted closing arguments or in any way distracted the lawyers or the jury. We find that Lawrence's argument is without merit because she has failed to meet her burden of proving that media coverage of closing arguments prevented her from presenting her defense or affected the ability of the jury to judge her fairly.
Cumulative Error
“Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Because no errors of any substance occurred during the course of Lawrence's trial, there can be no accumulation. We reject Lawrence's cumulative error claim.
Imposition of Consecutive Sentences
Lawrence contends that the district court erred by imposing consecutive prison terms because the court mistakenly believed that consecutive sentences were statutorily mandated. The State concedes the error.
At the sentencing hearing, the district judge observed, “[T]here is a special rule in this case in that because of the nature of the offense, aggravated endangerment of a child, the Court is obligated to run those sentences consecutive, Counts I and II.” The following language, set forth in K.S.A.2010 Supp. 21–3608a(b), provides the “special rule” to which the district judge most probably was referring: “Aggravated endangering a child is a severity level 9, person felony. The sentence for a violation of this section shall be served consecutively to any other term or terms of imprisonment imposed. Such sentence shall not be considered a departure and shall not be subject to appeal.” (Emphasis added.)
However, the law in effect on the date Lawrence's crimes were committed did not include the provision above, or any other requirement for consecutive sentences. See K.S.A. 21–3608a(b). Criminal statutes and penalties in effect at the time of a criminal offense are controlling. See State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004). The district court erred when it found it was obligated by special rule to impose consecutive sentences.
Therefore, we vacate Lawrence's sentences and remand for resentencing. See State v. Edwards, 252 Kan. 860, 868–70, 852 P.2d 98 (1993) (remanded for resentencing because district court premised decision to impose consecutive sentences upon mistaken belief such was mandatory and, by doing so, the court failed to exercise and/or abused its discretion).
Since we have remanded for resentencing, we do not address Lawrence's complaints regarding the court's imposition of the aggravated terms provided in Lawrence's presumptive sentencing grid blocks.
Convictions affirmed, sentences vacated, and case remanded.