Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Chrstipher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Chrstipher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
Christopher Cash appeals his two convictions for rape under K.S.A. 21–3502(a), a Jessica's Law crime. Cash argues the district court erred in instructing the jury. He contends the court should not have submitted to the jury a special question on the verdict form regarding Cash's age at the time of the crimes. He also contends the court should not have instructed the jury that its verdict “must be founded entirely upon the evidence admitted and the laws given in these instructions.”
We find no clear error in the district court's instructions to the jury and, therefore, affirm Cash's convictions.
During 2009 and 2010, 13–year–old A.H. dated 19–year–old Cash. On April 1, 2010, A.H. went to Arkansas City with some friends to meet Cash at a friend's house. As the evening progressed, A.H.'s friends decided to leave, but A.H. stayed because she wanted to spend time with Cash. A.H. and Cash went into one of the bedrooms and had what would otherwise be consensual sexual intercourse but for A.H.'s age. They later went to a trailer where they again had sex.
A.H.'s mother was upset the next day because A.H. had not been where she claimed she would be the previous night. A.H. wanted to avoid getting into trouble, so she told her parents that she had been raped by a stranger. A.H. reported the story to the police, stating that she had been raped by a stranger named “John” at a residence in Cowley County. A.H. was examined by a sexual assault nurse examiner. A.H. told the nurse that she had been sexually assaulted. The nurse collected swabs for DNA testing.
A detective contacted the Wellington Police Department and requested interviews of several people who were at the residence of the reported rape. When written statements of those present were provided, the detective noticed that the statements did not match the allegations made by A.H. After meeting with A.H. again and confronting her with the inconsistent stories, A.H. admitted that she had met Cash and had sex with him twice throughout the evening and in the morning hours. The detective interviewed Cash, who admitted having sex with A.H. DNA testing determined that Cash could not be excluded as a contributor of the DNA found on A.H.
Cash was tried and found guilty of two counts of rape. The district court concluded that the application of Jessica's Law to Cash would constitute cruel and unusual punishment under § 9 of the Kansas Bill of Rights. The court departed from Jessica's Law and sentenced Cash to 253 months in prison. This appeal followed.
¶ Special Question
Cash argues that the verdict form was improper in that after the jury was asked to determine Cash's guilt or innocence, the jury was asked a special question to establish whether Cash was at least 18 years of age at the time of the crimes.
Cash did not object to the verdict form. K.S.A.2014 Supp. 22–3414(3) requires a proper objection to preserve the issue for appellate review “unless the instruction or the failure to give an instruction is clearly erroneous.” Thus, we will consider this claim using the clearly erroneous standard; that is, whether using this form of verdict was in error (legally or factually inappropriate), and if so, whether we are firmly convinced the jury would have reached a different verdict using the proper verdict form. See State v. Clay, 300 Kan. 401, 408, 329 P.3d 484 (2014). Cash has the burden to establish clear error under K.S.A.2014 Supp. 22–3414(3). See State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).
One of the statutory elements of the crime of rape set forth in K . S.A. 21–3502(a)(2) is that the offender was over the age of 18 at the time the offense was committed. Rather than including this element in the instruction that listed the elements of the crime the State was required to prove, the district court submitted it to the jury as a special question. See Notes on Use for PIK Crim.3d 57.01. Jury Instruction No. 3 provided in relevant part:
“The defendant is charged with the crime of rape. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved by the State:
“1. That the defendant engaged in sexual intercourse with [A.H.], who was less than 14 years old when the sexual intercourse occurred;
“2. That this act occurred on or about the 2nd day of April, 2010, in Cowley County, Kansas.”
Instruction No. 4, the instruction for the second rape charge, contained identical elements except for the date.
The court's instructions followed PIK Crim.3d 57.01. In the Notes on Use for this instruction, PIK suggests that the court supplement the instruction outlining the elements of rape by posing the following special question on the verdict form: “If you find the defendant guilty of rape, do you also unanimously find beyond a reasonable doubt that the defendant was 18 years of age or older at the time the offense was committed?” PIK Crim.3d 57.01, Notes on Use. Under this procedure, the jury determines whether the defendant is guilty of the charged crime before answering the special question regarding the defendant's age.
After the completion of Cash's trial, our Supreme Court held that a special question such as the one used in this case was erroneous because “the defendant's age is an essential element” of the crime. State v. Brown, 298 Kan. 1040, Syl. ¶ 1, 318 P.3d 1005 (2014). The Brown court reaffirmed that special questions on verdict forms are prohibited in criminal cases. 298 Kan. at 1047 (reiterating its holding in State v. Osburn, 211 Kan. 248, Syl. ¶ 5, 505 P.2d 742  ). But the court concluded that submitting an element of the crime in the form of a special question does not automatically require reversal. Under the clearly erroneous analysis applied to our present case, we must determine whether the jury would have found Cash not guilty of two counts of rape if the special question about his age had not been included on the verdict form. See Clay, 300 Kan. at 408.
In State v. Reyna, 290 Kan. 666, 682, 234 P.3d 761, cert. denied 562 U.S. 1014 (2010), the court found no clear error despite a complete absence of a jury's finding regarding the defendant's age. The failure to instruct the jury on the essential element of age was harmless because the defendant testified he was 37 years old at the time of trial and the record contained no evidence that “could rationally lead to a contrary finding” that the defendant was not over the age of 18 at the time of the crimes.
In Brown, the court held that if the jury found that the defendant was 18 years or older when he committed the charged crime and the evidence was sufficient to support the jury's finding, the district court's failure to include the defendant's age in the jury instruction on the elements of the crime was harmless error. 298 Kan. 1040, Syl. ¶ 2.
Here, as in Brown, the jury made a finding that the defendant was over the age of 18. There was uncontroverted evidence presented at trial to support the jury's finding. A.H. testified that she knew Cash was over the age of 18. Cash told the detective that he was 19 years of age, and on his handwritten statement he stated that his date of birth was November 28, 1990. The detective testified that given his date of birth, Cash was 19 years old at the time of the crimes. None of this was controverted or objected to at trial. The State provided a sufficient foundation for this evidence.
There was sufficient evidence for the jury to find beyond a reasonable doubt that Cash was 18 years old or older as required by the charged statute. Accordingly, we are firmly convinced the jury would not have reached a different verdict had the error on the verdict forms not occurred.
• Verdict Must Be Based on Evidence and Law
Cash argues that the district court erred in instructing the jury that its verdict “must be founded entirely upon the evidence admitted and the laws given in these instructions.” Cash argues that by giving this instruction the district court deprived the jury of its “right” to enter a verdict contrary to the evidence or the law, a practice referred to as jury ification.
Cash failed to object to this instruction. Thus, we again apply the clearly erroneous standard. K.S.A.2014 Supp. 22–3414(3) ; Clay, 300 Kan. at 408.
Cash claims this instruction misstates Kansas law because the jury has the power to ify. See State v. Naputi, 293 Kan. 55, 65–66, 260 P.3d 86 (2011). Cash acknowledges that a jury should not be told it can ify, but he claims that it is a misstatement of law to tell the jury that it cannot ify and must base its decision on the “evidence admitted and the laws given.”
Jury ification occurs when a jury knowingly renders a verdict contrary to the evidence or the law. A panel of this court defined jury ification as
“ ‘[a] jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.’ [Citation omitted.]” Silvers v. State, 38 Kan.App.2d 886, 888, 173 P.3d 1167, rev. denied 286 Kan. 1180 (2008).
The Kansas Supreme Court has expressly disapproved of the use of a jury ification instruction. See State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973) (“[I]t is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon .”). Even though juries have the power to ify, the defendant is prohibited from urging the jury to disregard the facts and law of the case.
“Juries have the power to return verdicts which deny the facts and the law. [Citation omitted.] While a defendant does not have the right to argue jury ification [citation omitted], nor the right to a jury ification instruction [citation omitted], nothing stops him from entertaining a desperate hope that a jury will ‘acquit a defendant on the basis of extraneous factors.’ [Citation omitted.]” People v. Montanez, 281 Ill.App.3d 558, 564–65, 667 N.E.2d 548 (1996).
In State v. Pennington, 254 Kan. 757, 764, 869 P.2d 624 (1994), the court noted that PIK Crim.3d 51.02 provides: “ ‘You should decide the case by applying these instructions to the facts as you find them.’ “ The court observed that the better practice would be to use the word “ ‘must’ “ in place of “ ‘should’ “ because it is a stronger term. 254 Kan. at 764. And in McClanahan, our Supreme Court rejected a “do what you think is fair” instruction and held that “it is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon.” 212 Kan. at 217.
Instructing a jury to base its verdict “entirely upon the evidence admitted and the laws given in these instructions” is consistent with a juror's oath to reach a verdict based on the evidence presented and the law as instructed. See K.S.A.2014 Supp. 60–247(d). K.S.A. 22–3403(3) provides that when a trial is by jury, questions of law shall be decided by the court and issues of fact shall be determined by the jury. While under the rubric of jury ification jurors have the power to ignore the law and the evidence, doing so is a clear violation of their oaths as jurors.
Because we find no error in this jury instruction, we need not reach the second element of a clear error analysis: whether we are firmly convinced the jury would have ignored the law and the evidence and acquitted Cash if this instruction had not been given.