Opinion
111,100.
04-10-2015
STATE of Kansas, Appellee, v. Otis SAVILLE, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Otis Saville of electronic solicitation of a child and attempted criminal sodomy. The trial court imposed a controlling presumptive prison sentence of 134 months. Saville raises three issues on appeal. First, he contends the evidence was insufficient to establish his guilt of attempted criminal sodomy beyond a reasonable doubt. Second, Saville claims the prosecutor committed reversible misconduct during closing arguments. Finally, he asserts the trial court abused its discretion when it denied his request for a downward dispositional and/or durational sentencing departure. Having carefully considered the record on appeal and the parties' briefs, we affirm the convictions and sentences and dismiss Saville's sentencing issue for lack of jurisdiction.
Factual and Procedural Background
In September 2012, based upon a citizen's complaint, the Exploited and Missing Child Unit (EMCU), a “multi-agency unit comprised of the Wichita Police Department, Sedgwick County Sheriff's Office[,] and [Kansas] ... social workers,” began an investigation of Saville. In particular, on September 20, 2012, Jennifer Wright, a detective with the Internet Crimes Against Children Task Force of the EMCU, sent a nondescript text message to a phone number associated with Saville. Saville responded with a text.
The messages between Detective Wright—posing as “Marissa,” a 14–year–old female—and Saville, who was 33 years old at the time, spanned several days. The numerous texts from Saville to Marissa were noteworthy for their explicit salacious content—including references to engaging in bondage, spanking, and other sex acts, in addition to colloquial references to a woman's genitalia. Over time, Saville and Marissa discussed meeting for sexual relations. Saville informed Marissa that he had a fetish for hosiery, and he requested that she either wear it or have it with her when they met so he could use it during bondage.
On September 27, 2012, Marissa informed Saville that she was going to stay home from school the following day and they could meet. In anticipation of the meeting, Saville asked Marissa about hosiery, if he could bring rope, and he said there would be “alota 4play.” Marissa suggested meeting Saville at a car wash near her home and then walking to her home for sexual relations.
On September 28, 2012, Marissa and Saville finalized the logistics of their meeting. Specifically, they planned to meet around 9:30 a.m. at the car wash near 31st Street South and Meridian in Wichita. Saville indicated that he would be wearing a blue shirt with shorts. At the agreed-upon time and location, Saville arrived at the car wash wearing a blue shirt with khaki shorts and carrying a “cinch bag.”
Detective Wright and other law enforcement officers arrested Saville at the scene. Inside Saville's cinch bag was a vibrator; ropes of assorted sizes, two handmade whips; nipple clamps connected with a chain; a book of erotica entitled “Instruments of Pleasure”, and an unopened bottle of vodka. Additionally, officers discovered on Saville a cell phone which was assigned the number of the cell phone from which the text messages were received by Marissa.
Saville was arrested and taken to the EMCU's office; and after he waived his Miranda rights, Detective Wright interviewed him. Detective Wright asked Saville why he had gone to the car wash that day; and Saville told her, “[H]e was there to meet a girl named Marissa and then go back to her house and ... ‘eat pussy[,]’ ... spend time with her[,] ... [and] play[ ] with her tits.” When Detective Wright questioned Saville as to what he meant by “ ‘eat pussy,’ “ he informed her that he was referring to “[o]ral sex performed by [him] on the female vaginal area.” Saville further stated that he thought Marissa was 14 years of age and that he believed he knew her from walking in that neighborhood. Additionally, when questioned about the text messages, Saville indicated the messages represented “his conversation with the 14–year–old he believed to be Marissa,” and had Marissa been at the car wash, “he would have [gone] back to her house and engaged in the activities that they had discussed” in the messages.
Saville was charged with electronic solicitation of a child, a severity level 3 person felony, in violation of K.S.A.2014 Supp. 21–5509(a), (b)(1), and attempted criminal sodomy, a severity level 5 person felony, in violation of K.S.A.2014 Supp. 21–5301(a), (c)(1) and K.S.A.2014 Supp. 21–5504(a)(3). At the conclusion of the trial, the jury convicted Saville as charged.
On November 15, 2013, the district court denied Saville's timely motion for new trial and/or judgment of acquittal. The trial court imposed a controlling presumptive prison sentence of 134 months followed by lifetime postrelease supervision. Saville filed a timely appeal.
Sufficiency of the Evidence to Prove Attempted Criminal Sodomy
Saville contends the trial evidence was insufficient to prove his guilt, beyond a reasonable doubt, of attempted criminal sodomy. Specifically, Saville claims the State's evidence did not establish that he committed an overt act towards the commission of the crime because his arrival at the car wash to meet Marissa, while carrying a bag of sex devices was “mere preparation.” The State, on the other hand, argues that the evidence was more than sufficient to prove Saville's guilt because, as demonstrated by his postarrest confession, Saville's “arrival at the carwash [sic ] constituted a step, beyond mere preparation, in what he believed to be a direct line of events where he would ultimately perform oral sex on a fourteen-year-old girl.”
When the sufficiency of evidence is challenged in a criminal case, this court reviews the issue by looking at all of the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). In determining whether there is sufficient evidence to support a conviction, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
To convict Saville of attempted criminal sodomy, the State was required to prove that Saville committed an overt act towards the perpetration of sodomy with a child—14 or more years old, but less than 16 years old—with the intent to commit such crime but that he failed in the perpetration thereof or was intercepted or prevented from executing the crime. See K.S.A.2014 Supp. 21–5301(a) (defining attempt); K.S.A.2014 Supp. 21–5504(a)(3) (defining criminal sodomy). Our legislature has statutorily defined sodomy as “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.2014 Supp. 21–5501(b).
Whether a defendant committed an overt act towards the commission of a crime is a factual question for the jury because each case is dependent upon its particular factual circumstances and the reasonable inferences that may be drawn from those facts. State v. Garner, 237 Kan. 227, 238, 699 P.2d 468 (1985). As our Supreme Court recently reiterated:
“ ‘Kansas law does not provide definitive rules as to what constitutes an overt act for attempting crime. The overt act necessarily must extend beyond mere preparations made by the accused and must approach sufficiently near to the consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense.’ [Citations omitted.]” State v. Ortega, 300 Kan. 761, 770, 335 P.3d 93 (2014).
While the State must prove that the defendant undertook an overt act beyond mere preparations, which include devising or arranging the necessary means or measures for committing the offense, the State does not need to show that the defendant's act was the “ ‘last proximate act in the consummation of the crime.’ [Citation omitted.]” Ortega, 300 Kan. at 771 ; see State v. Risinger, 40 Kan.App.2d 596, 598, 194 P.3d 52 (2008). Moreover, the defendant's intent, rather than the possibility of success, determines whether the defendant's act constitutes the crime of attempt. State v. Martens, 274 Kan. 459, 466, 54 P.3d 960 (2002). Neither factual nor legal impossibility qualifies as a defense to an attempt; “[i]t shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.” K.S.A.2014 Supp. 21–5301(b) ; see State v. Jones, 271 Kan. 201, 203, 21 P.3d 569 (2001).
Saville insists that his actions constituted mere preparations because the car wash was not Marissa's and his “final destination.” According to Saville, because “he had not [yet] ‘approach[ed] consummation of the offense,’ “ he still had an opportunity to voluntarily renounce his criminal intent. He also asserts that a defendant may not be found guilty of an attempt until he or she has arrived at the destination where the crime is to occur. As a result, Saville claims he “would not be able to take the ‘first or some subsequent step in a direct movement toward the commission of the crime’ until he was [at] ‘Marissa's' house, the intended final destination [for the criminal sodomy].”
But as the State points out, our Supreme Court has considered and rejected a similar legal argument. In State v. Peterman, 280 Kan. 56, 118 P.3d 1267 (2005), Donna Davis met Steven Peterman at a bar; and while discussing the possibility of making money from pornography, Peterman said he wanted to take pornographic pictures of little girls. Offended but in an effort to ascertain whether he was serious, Davis told Peterman she could provide him with young girls. Peterman promised Davis that they would “make a lot of money. Two weeks later, Peterman paged Davis and asked if she had “any little girls for him to have sex with and photograph that night.” 280 Kan. at 57. Davis falsely told Peterman that she had a 10–year–old girl with her at a birthday party. Although Peterman wanted to immediately come to Davis' house, Davis stalled him by informing him they could not “get together with the child” until after her birthday party and instructed him to call back in 30 minutes. 280 Kan. at 57.
Davis called the police and explained the situation. About 20 minutes later, Peterman called Davis, and Davis gave him her brother's address and directions to his apartment. When Peterman asked if the child was present at that location, Davis responded affirmatively. Peterman subsequently parked next to the apartment. Davis then sat with Peterman in his truck, awaiting the police.
While inside the truck, Peterman asked about the little girl; and Davis explained that the child was in the apartment attending her birthday party. Peterman told Davis he wanted to take the girl, but Davis convinced him to wait until after the party when she could bring the child to a motel to meet him. Peterman then described his plans for the child in detail. Specifically, he told Davis he planned to drug her, penetrate her vagina with a vibrator, and have sex with her. Peterman then showed Davis his briefcase which contained an assortment of sexual devices, creams, condoms, and photographs of naked little girls with whom Peterman claimed to have been sexually intimate. When law enforcement officers arrived at the location, Peterman admitted that he had “planned to take photographs of himself having sex with the child and would have used the items in his briefcase on the child.” 280 Kan. at 59.
A jury convicted Peterman of attempted rape, solicitation to commit rape, and solicitation to commit sexual exploitation of a child. He appealed, and although a panel of this court affirmed his convictions for the solicitation charges, it reversed his conviction for attempted rape, finding the evidence insufficient to establish his guilt. See 280 Kan. at 59. The panel agreed with Peterman's claim that he had not completed an overt act towards perpetration of the offense because he was “never in close physical proximity with the purported child victim”; instead, his actions were “mere preparation because the final plans had not been completed and the intended victim was fictional.” 280 Kan. at 59.
Upon review, our Supreme Court disagreed. First, the Supreme Court concluded the panel's determination that a defendant may not be found guilty of attempt when the intended victim is fictional was contrary to the statutory definition of attempt set forth in K.S.A. 21–3301(b), now recodified at K.S.A.2014 Supp. 21–5301(b). 280 Kan. at 61–62. The court explained that as it found in Jones, 271 Kan. at 203, “K.S.A. 21–3301(b) codified the existing law that factual impossibility to commit a crime is not a defense and eliminated the doctrine of legal impossibility as a defense.” Peterman, 280 Kan. at 63.
Our Supreme Court also rejected this court's finding that Peterman did not commit an overt act beyond mere preparations:
“Although Peterman did not come in close physical proximity with a child, his intent was to have sexual intercourse with a child. Peterman's act of driving to meet Davis to pick up a child for the purpose of sexual intercourse constituted an overt act beyond mere preparations. Peterman went as far as he could toward completing his criminal intentions prior to discovering that the child victim was fictional.” 280 Kan. at 64.
In the present case, as in Peterman, the trial evidence sufficiently established that Saville went as far as he could toward completing his criminal intentions prior to discovering that Marissa was fictitious. See Peterman, 280 Kan. at 64. Indeed, after arranging the date, time, and location of a sexual encounter with Marissa, Saville went to the initial preordained meeting place with a cinch bag full of sex devices and a bottle of vodka. And if there were any doubts regarding Peterman's purpose in arriving at the car wash, Saville fully confessed to his lewd intentions which were corroborated by his previously sent text messages. Under these circumstances, the jury had a reasonable basis for concluding that Saville's actions extended beyond mere preparations.
Our conclusion is bolstered by a review of our court's published and unpublished opinions with similar fact patterns which generally applied Kansas law regarding attempted sex crimes with children. See Risinger, 40 Kan.App.2d 596, Syl. ¶ 5 (defendant “went as far as he could toward completing his crime prior to discovering his child victim was fictional” because he engaged in many sexually explicit conversations and, after arranging a meeting, he went to the 14–year–old's purported residence and knocked on the door “for the avowed purpose of attempting inappropriate and illegal sexual acts”); State v. Hill, No. 98,456, 2009 WL 196152, at *6–8 (Kan.App.2009) (unpublished opinion) (evidence was sufficient to establish defendant's guilt of attempted aggravated indecent liberties with a child where, after discussing the offense on three occasions, the defendant drove to the apartment complex where he believed his fictional victim resided and attempted to contact her while moving his vehicle to different locations within the parking lot); State v. Vandever, No. 95,762, 2007 WL 1529681, at *1 (Kan.App.2007) (unpublished opinion) (defendant's “driving from Hutchinson to the convenience store in Wichita, bringing condoms, approaching ‘Paige,’ [a fictitious 13–year–old girl] and asking her to leave with him for the purpose of sexual intercourse constituted an overt act toward the crime of attempted rape”), rev. denied 285 Kan. 1177 (2007); State v. Ladd, No. 94,383, 2006 WL 1379645, at *1–3 (Kan.App.2006) (unpublished opinion) (evidence was sufficient to sustain defendant's conviction for attempted rape because after multiple sexually explicit chat sessions with detective who posed as a 13–year–old girl, the defendant made arrangements to meet her, drove from Kansas City to Wichita, and entered her purported residence with condoms and a hotel room key); State v. Neth, No. 92,477, 2005 WL 3289371, at *1, 3 (Kan.App.2005) (unpublished opinion) (defendant committed overt act towards the commission of attempted rape of a child under 14 when, after chatting with a detective posing as a 13–year–old girl and masturbating in front of his web camera for her benefit, he suggested a “sexual liaison” and went to a restaurant to meet the fictional girl with two condoms in his pocket), rev. denied 281 Kan. 1381 (2006).
Although Saville encourages our court to adopt the dissenting opinion in Peterman rather than that of the majority, we are duty bound to follow precedent from the Kansas Supreme Court absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). There is no evidence to suggest that our Supreme Court is considering a departure from its holding in Peterman. See Ortega, 300 Kan. at 768–73 (affirming Peterman ).
In conclusion, when viewed in the light most favorable to the prosecution, there was substantial competent evidence upon which a rational factfinder could have found Saville guilty, beyond a reasonable doubt, of attempted criminal sodomy.
Prosecutorial Misconduct
For the first time on appeal, Saville claims that two statements made by the prosecutor during closing arguments resulted in misconduct that merits reversal of his convictions.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the appellate court determines whether the comments were outside the wide latitude afforded a prosecutor in discussing the evidence. Second, if misconduct is found, the appellate court must decide whether the improper comments compel reversal; that is, whether the statements prejudiced the jury against the defendant and deprived him or her of a fair trial. State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014).
First, Saville asserts the prosecutor improperly referenced facts not in evidence. Saville complains about the following remarks which, according to Saville, imply that he was “going to victimize any child he came across at that carwash [sic ]” when, in actuality, he never made such a statement to law enforcement. Saville challenges the following argument by the prosecutor:
“The defendant's conversations, showing up that day, the sex toys he brought with him and later his statements to Detective Wright tell you what his intent was. You know what, if you had been a 14–year–old girl, I wanted to have oral sex with you. That's what he tells Detective Wright.
....
“... The State's not alleging that the defendant completed the crime of criminal sodomy but that he attempted to but that he was stopped by law enforcement. That's exactly what we have here, ladies and gentlemen. He told Detective Wright that's what I wanted to do. I wanted to perform oral sex on a 14–year–old and if a child had been there I would have done it. We would have gone back to her house and she would have been tied up.”
Prosecutors have wide latitude to craft arguments that draw reasonable inferences from the evidence. See State v. Hart, 297 Kan. 494, 505, 301 P.3d 1279 (2013). In other words, “ ‘[a] prosecutor “is given wide latitude in language and in manner [of] presentation of closing argument as long as the argument is consistent with the evidence.’ “ [Citations omitted.]” Hall, 292 Kan. at 848. Kansas appellate courts have “repeatedly” held, however, that a prosecutor may not comment upon facts not in evidence, and when a prosecutor argues facts outside the evidence, the first prong of the prosecutorial misconduct test is met. 292 Kan. at 848 ; accord State v. Akins, 298 Kan. 592, 601, 315 P.3d 868 (2014).
Appellate courts typically read challenged remarks by a prosecutor in their full context because “reading [such] comments in isolation can frequently be misleading as to the message that the prosecutor was conveying to the jury.” State v. Naputi, 293 Kan. 55, 59, 260 P.3d 86 (2011). Here, when the prosecutor's argument is read in full context, it is very clear that Saville has misinterpreted the prosecutor's remarks. The prosecutor's argument referred to Saville's postarrest admissions to Detective Wright (who Saville had just learned had deceived him into believing that she was a 14–year–old girl) stating his intent to criminally sodomize her (Marissa). The argument was especially relevant to the following testimony by Detective Wright:
“[PROSECUTOR:] Detective, did you ask [Saville] what he would have done if there would have been a real 14–year–old there?
“[DETECTIVE WRIGHT:] Yes, I did.
“[PROSECUTOR:] What did he say?
“[DETECTIVE WRIGHT:] That he
....
“[DETECTIVE WRIGHT:] Without referring to the transcript from that interview, I believe his response was that he would have went back to her house and engaged in the activities that they had discussed.” (Emphasis added.)
The prosecutor's argument was not misconduct because it obviously was a summarization of Detective Wright's trial testimony.
Moreover, the prosecutor's argument was in support of the jury instructions relating to the elements of the crimes charged. The prosecutor emphasized: “There's no doubt or there's no question [Saville] believed that Detective Wright was actually Marissa, who was a 14–year–old, which is something else that the State has to prove.” Indeed, the prosecutor's remarks were nothing more than an attempt to highlight the abundant evidence admitted at trial—especially Saville's postarrest admissions to Detective Wright—which supported Saville's guilt, despite the fact that Marissa was not, in fact, a 14–year–old girl but Detective Wright.
In sum, we have no difficulty in finding the prosecutor did not misstate trial testimony or exceed the wide latitude afforded prosecutors in making this particular closing argument.
For his second claim of prosecutorial misconduct, Saville asserts the prosecutor attempted to inflame the passions and prejudices of the jury when she stated:
“Not only do you have the detective telling you what [Saville] said, not only do you have the content of the conversations between the detective and [Saville], you have [Saville]'s actions, that he showed up with these sex toys. And thank God it was Detective Oliver and not a 14–year–old child. (Emphasis added.)
In particular, Saville contends the “overly dramatic comments” referenced above were impermissible because “there was very little danger that a fourteen year old girl would have been at the carwash that day, and absolutely no chance that ‘Marissa,’ the fictional fourteen year old would have been there.” The State counters that, although the prosecutor may have employed powerful and/or picturesque language, the statement is simply a conclusion, based upon the evidence, which the prosecutor used to remind the jury that Saville's actions constituted a crime even though his intended victim was fictitious.
Kansas appellate courts have repeatedly stated that “a prosecutor must guard against appeals to jurors' sympathies or prejudices. [Citation omitted.]” Hall, 292 Kan. at 853. Statements made by a prosecutor during closing arguments that are “ ‘intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law’ “ are improper. State v. Duong, 292 Kan. 824, 833–34, 257 P.3d 309 (2011) (quoting State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 [2004] ).
We are persuaded that the prosecutor's exclamation, “[T]hank God it was Detective Oliver and not a 14–year–old child,” had less to do with a permissible discussion of trial evidence and more to do with an impermissible attempt to provoke the emotions of the jury. As such, the prosecutor erred.
Did the prosecutor's comments deprive Saville of a fair trial? In the second step of the prosecutorial misconduct analysis, appellate courts consider three factors, none of which is individually controlling: (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. State v. Williams, 299 Kan. 509, 540, 324 P .3d 1078 (2014). Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A.2014 Supp. 60–261 and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967), have been met. Williams, 299 Kan. at 540–41. Under the constitutional harmless error test, the party benefitting from any prosecutorial misconduct must prove beyond a reasonable doubt that the error will not or did not affect the outcome of the trial in light of the entire record, i.e., there is no reasonable possibility that the error contributed to the verdict. 299 Kan. at 541. Under the statutory harmless error standard, the court must determine whether “ ‘there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.’ [Citation omitted.]” 299 Kan. at 541.
With regard to the first factor, “[i]n determining whether prosecutorial misconduct was gross and flagrant, among the things an appellate court considers are whether the comments were repeated, emphasized improper points, were planned or calculated, or violated well-established or unequivocal rules.” Akins, 298 Kan. 592, Syl. ¶ 7. In particular, Saville claims the prosecutor's comment was gross and flagrant because it “forced [the] jury to overlook any doubt it may have [had] regarding [his] intentions that day.”
Given the overwhelming evidence of Saville's intent to engage in lewd conduct with Marissa, however, it is unclear how the prosecutor's brief statement could have swayed the jurors to ignore any of their doubts regarding his intent. Moreover, the prosecutor did not emphasize or unduly belabor the point; the remark was brief and was not significant given the prosecutor's otherwise proper closing argument. In other words, the prosecutor's remark constituted a “minuscule portion” of her closing argument. See State v. Skinner, No. 108,140, 2013 WL 4404181, at *6 (Kan.App.2013) (unpublished opinion), rev. denied 299 Kan. ____ (June 20, 2014).
With regard to the second factor, a prosecutor's ill will is usually reflected through deliberate and repeated misconduct, mocking of a defendant, or indifference to a court's rulings. State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011) ; State v. Miller, 284 Kan. 682, 719, 163 P.3d 267 (2007). Saville contends the prosecutor demonstrated ill will because her remark was “a last-minute attempt to strengthen” the State's case by improperly rebutting his counsel's effort to point out that “ ‘Marissa’ was not a real child, but a figment of [Detective] Wright's imagination, and that Wright had pursued [him] by texting him repeatedly.” But it is unclear how the prosecutor's mistaken effort to rebut a defense strategy demonstrates ill will. Moreover, this comment was not even contemporaneously objected to by Saville's trial counsel. Our reading of the prosecutor's entire closing argument convinces us that, when taken in context, the offending remark does not manifest any ill will towards Saville.
With regard to the third factor of the prejudice analysis, we are convinced the trial evidence was of such a direct and overwhelming nature that the misconduct did not deny Saville a fair trial, had little if any weight in the minds of jurors, and did not affect the verdict. The jury observed the witnesses and heard the testimony, which clearly showed that Saville arranged a sexual encounter with someone he believed was a 14–year–old child, and then he went to the preordained meeting place with a bag full of sex devices and a bottle of vodka. Moreover, Saville later admitted that he undertook these actions with elicit intentions. Employing both the constitutional and statutory standards of harmlessness, we find no reversible error. See Williams, 299 Kan. at 540–41.
In summary, having applied the appropriate standards to analyze prosecutorial misconduct issues, we conclude that although the prosecutor's second comment was in error, there was no reversible error.
Denial of Motion for Departure Sentences
Prior to sentencing, Saville filed a motion seeking a durational and/or dispositional departure. Saville alleged the following substantial and compelling reasons justified imposing departure sentences: (1) The age of his only prior person felony conviction and his “overall lack of [a] substantial criminal history”; (2) Dr. Bruce Nystrom had determined that he was “in the low-moderate percentile for reoffending” and recommended that he receive sex offender treatment within the community; (3) if granted probation, he would pursue the necessary sex offender treatment “as well as treatment for his addictions,” which would promote offender reformation and reduce his recidivism risk; (4) the harm in this case was less than typical because the child was “simply a figment of the detective's imagination”; and (5) he is not a violent offender and granting him a departure would not pose a safety risk to the community.
After considering the parties' arguments, the district judge denied Saville's motion:
“There is a motion to depart filed by the defense. It's been well stated, argued; however, I'm going to deny that motion. I am going to follow the legislative directive, the presumption in this case, which is prison. I'm finding there are not substantial and compelling factors that would support a departure in this case. I believe that the facts of the case will bear out the seriousness as well as the danger that Mr. Saville poses to this community when he is engaging in this behavior bringing, I believe, sex toys and alcohol to a meeting with an underage girl—in his mind, an underage girl. So, therefore, I believe that the appropriate sentence is to follow the legislative presumption which is prison, controlling sentence of 134 months.”
On appeal, Saville contends the district court abused its discretion when it determined the mitigating factors he cited in support of his request for a downward durational and/or dispositional departure were not substantial and compelling reasons to depart from the sentences proscribed by the Revised Kansas Sentencing Guidelines Act (KSGA). See K.S.A.2014 Supp. 21–6801 et seq. As the State asserts, however, this court does not have jurisdiction to consider this issue because Saville received presumptive sentences. The district court imposed a controlling prison term of 134 months, which represents the upper presumptive guidelines sentence for individuals, like Saville, who were convicted of electronic solicitation and attempted criminal sodomy with a criminal history score of D.
Although our Supreme Court recently found that all departure sentences are appealable—regardless of whether they are favorable to the defendant—unless a specific provision divests the appellate court of jurisdiction, appellate courts are without jurisdiction to review any sentence entered for a felony, committed on or after July 1, 1993, that falls within the presumptive KSGA sentencing range for the crime. See K.S.A.2014 Supp. 21–6820(a), (c)(1) ; State v. Looney, 299 Kan. 903, 908, 327 P.3d 425 (2014) (finding “a defendant who requests a durational departure to a specific term, and then receives a favorable durational departure but to a term longer than the one requested, ... could indeed complain the sentencing court ‘did not depart enough” ’); State v. Huerta, 291 Kan. 831, 835–37, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721(c)(1) [recodified as K.S.A.2014 Supp. 21–6820(c)(1) ] eliminates appeals of presumptive sentences); State v. Williams, 37 Kan.App.2d 404, 407–08, 153 P.3d 566 (appellate court without jurisdiction to review denial of dispositional or durational departure motion), rev. denied 284 Kan. 951 (2007).
We are required to follow our Supreme Court's precedent. Ottinger, 46 Kan.App.2d at 655. Accordingly, this sentencing issue is dismissed. Saville's convictions and sentences are affirmed.
Affirmed in part and dismissed in part.