State v. Willis , 51 Kan. App. 2d 971 ( 2015 )

No. 110,954
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
LAMAR WILLIS,
Appellant.
SYLLABUS BY THE COURT
1.
An appellate court generally reviews a district court's discovery order for abuse of
discretion. However, to the extent that the resolution of a discovery request requires
statutory interpretation, an appellate court has unlimited review.
2.
Under the facts and circumstances of this case, the district court erred in denying
the defendant's discovery request without conducting an in camera inspection of the
documents in question.
3.
Generally, constitutional grounds for reversal asserted for the first time on appeal
are not properly before the appellate court for review. There are three exceptions to this
general rule: (1) the newly asserted claim involves only a question of law arising on
proved or admitted facts and is determinative of the case; (2) consideration of the claim is
necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3)
the district court is right for the wrong reason.
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4.
When a district court provides alternative bases to support its ultimate ruling on an
issue and an appellant fails to challenge the validity of each alternative basis on appeal,
an appellate court may decline to address the appellant's challenge to the district court's
ultimate ruling.
5.
An appellate court examines jury instructions as a whole, without focusing on any
single instruction, in order to determine whether they properly and fairly state the
applicable law or whether it is reasonable to conclude that they could have misled the
jury.
6.
Although the use of Pattern Instructions for Kansas (PIK) instructions is not
required, it is strongly recommended, as these instructions have been developed by a
knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions.
However, if the particular facts in a given case require modification of the applicable
pattern instruction or the addition of some instruction not included in PIK, the district
court should not hesitate to make such modification or addition.
7.
Under the facts and circumstances of this case, the limiting instruction given by
the district court regarding the K.S.A. 60-455 evidence would have been improved by
modifying the language to read: "Evidence has been admitted 'alleging' that the
defendant committed crimes other than the present crimes charged." However, the jury
instructions as a whole properly and fairly stated the applicable law and could not have
misled the jury.
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8.
An appellate court uses a two-step process to review allegations of prosecutorial
misconduct in closing argument. First, an appellate court determines whether there was
misconduct, i.e., whether the prosecutor's comments were outside the wide latitude
allowed in discussing the evidence. Second, if misconduct is found, the appellate court
determines whether those comments compel reversal, i.e., whether the statements
prejudiced the jury against the defendant and denied the defendant a fair trial.
9.
Cumulative trial errors, when considered collectively, may require reversal of the
defendant's convictions when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. Given that the reversibility test for
cumulative error utilizes a totality of the circumstances approach, an appellate court must
necessarily review the entire record and engage in an unlimited review.
10.
An appellate court reviews for abuse of discretion a district court's determination
that there were not substantial and compelling reasons to depart from a Jessica's Law
sentence. A district court is not obligated to grant a departure sentence simply because
mitigating factors exist.
Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed October 2, 2015.
Affirmed in part, reversed in part, and remanded with directions.
.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before MALONE, C.J., ARNOLD-BURGER, J., and JOHNSON, S.J.
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MALONE, C.J.: Lamar Willis appeals his convictions of two counts of aggravated
indecent liberties with a child, one count of aggravated criminal sodomy, and one count
of attempted rape. Willis claims: (1) the district court erred in denying his requests for
discovery; (2) the district court erred by granting the State's motion in limine and
excluding certain evidence; (3) the district court violated his due process rights by
admitting evidence of prior crimes under K.S.A. 60-455; (4) the district court gave an
erroneous limiting instruction regarding the K.S.A. 60-455 evidence; (5) the prosecutor
committed misconduct during closing argument; (6) cumulative error requires reversal;
and (7) the district court erred by denying his motions for a sentencing departure. We
agree, in part, with Willis' claim that the district court erred in denying his requests for
discovery, and we remand for the district court to conduct an in camera inspection of
certain records. However, we affirm the district court's judgment on all remaining claims.
FACTUAL AND PROCEDURAL BACKGROUND
We will review the facts in detail. In 1996, Sherry Jones and James Newman
began dating and, on December 1, 1998, their daughter, J.N., was born. At some point,
J.N. went to live with her grandmother. Although Jones and Newman split up around
2001, Newman continued to see J.N. and the two sons he had with Jones.
Also in 2001, Jones met Willis, whom she married in 2003. They lived in
Leavenworth, Kansas. Newman's sister, Nicole Newman, and J.N. were close, and on
occasion Nicole would pick up J.N. at her grandmother's house and take her to
Leavenworth, to Jones and Willis' home. Nicole later testified that on multiple occasions,
Jones was not home when Nicole and J.N. arrived at the house, so Nicole would leave
J.N. alone with Willis. Jones and Willis divorced within less than a year, but they
remained friends and, in 2004, they reconciled and remarried.
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In 2005, J.N. came to live with Jones, Willis, and J.N.'s brothers in Leavenworth.
During that time, Jones worked nights and Willis worked days, so Willis was the only
adult with the children at night. Newman later testified that at times he would call Willis
and Jones' house and his two sons would be there but Willis and J.N. would not be at
home. Also, Newman testified that on at least one occasion, when he picked up J.N. from
the house, J.N. and Willis were the only ones home and J.N. was in a bedroom.
Discovery of Facebook messages
Jones and Willis divorced for a second time soon after they remarried, but they
remained close. In 2006, Nicole helped J.N. set up an email account so that Nicole and
J.N. could stay in touch. Nicole knew the password to J.N.'s account and monitored it
regularly. At some point, J.N. also obtained a Facebook account, which Nicole learned
about when J.N. sent her a friend request on Facebook.
Sylvia Cheney, Jones' sister and J.N.'s aunt, learned in early 2010 that J.N. had
two Facebook accounts—one under her own name and one under the name "Jade."
Cheney informed Jones, who punished J.N. and told her to delete the accounts. Jones
later testified that she discovered that J.N. had been using the false online identity to
communicate with older men on Facebook.
In April 2011, Jones and J.N. moved to Kansas City, Kansas. Willis had moved
there around the end of 2010. Although he remained in contact with J.N. and her
brothers, Willis stated that he moved in part because Jones had become involved with
another man and had "pulled the kids away from [Willis]." Jones later testified that Willis
spent more time with J.N. than he did with the boys and that Willis bought J.N. items he
did not buy the boys, such as a cell phone and a computer.
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On September 10, 2011, Nicole checked J.N.'s email account and found that Willis
had sent Facebook messages to J.N. that Nicole felt were inappropriate. The Facebook
messages had been forwarded to J.N.'s email account. Specifically, Nicole found the
following message inappropriate:
"You're my buddy, I consider u one of my best best best friends. As far as I'm concerned,
your'e an awesome person,; and God knws I miss u terribly bad. I miss us sitting around
talking while Jade try and convince me to let her have company with her horny self. (Is
she still like she use to be, wanting to date older guys. . . . n still very horny)? U knw her
better than I do. So is she?"
Nicole printed out that message and some others between Willis and J.N. and gave
them to Newman, who showed them to Jones. Jones called Willis and asked him what
was going on, but Willis laughed it off and told Jones that Jade was one of J.N.'s older
friends. Jones and Newman asked J.N. why Willis talked to her as he did in the message,
and J.N. repeatedly said she did not know.
At that point, Jones remembered that J.N. had used the identity Jade before. She
confronted J.N. and said that she knew J.N. was Jade, but J.N. refused to say anything to
either Jones or Newman. Newman took Jones and J.N. to a relative's house, where Jones'
family had gathered. Once there, Jones and her sisters spoke with J.N., who ultimately
revealed that Willis had touched her sexually. Newman stated that J.N. was "shaken up
and crying and shaking." Jones called the police.
Law enforcement investigation
Officer Sarah Panjada of the Kansas City, Kansas, Police Department responded
to the call and spoke with Jones, whom she described as "upset" and "very animated."
Jones told Panjada that her ex-husband had inappropriate contact with J.N. Jones showed
Panjada the Facebook messages and said that J.N. had told her that Willis had "been
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feeling on her and kissing on her." With Jones' permission, Panjada spoke with J.N.
Although J.N. appeared uncomfortable and embarrassed, she told Panjada that she and
Willis had sexual contact on multiple occasions. According to J.N., Willis had touched
her breasts and her genitals, kissed her, and tried to penetrate her vagina with both his
fingers and his penis. J.N. also described being naked in a bed with Willis and said he
forced her to perform oral sex on him. J.N. had difficulty remembering how far back the
abuse went but remembered it happening in April 2007 in Leavenworth.
On September 15, 2011, Erin Weiss, a forensic interviewer, interviewed J.N. at the
Sunflower House. In the interview, J.N. described numerous times when Willis had
sexually assaulted her. J.N. also stated that Willis took naked photographs of her, showed
her a video of Willis and Jones having sex, and told her if she told anyone, both he and
Jones would hurt her. On September 19, 2011, pediatric nurse practitioner Jana Etherton-
Still examined J.N. at Children's Mercy Hospital and found a notch on J.N.'s hymen,
which could have resulted from previous trauma or could have been a normal variant.
On September 20, 2011, police searched Willis' house, supervised by Detective
Jackie Lynn. Claude Harper, a member of the crime scene investigation unit, collected a
computer, a camera, flash drives, and a tripod and camcorder from the house and seized a
laptop computer and flash drive from Willis' truck. Forensic scientist Todd Taylor, who
worked at the Heart of America Regional Computer Forensics Laboratory, examined the
computer, the cameras, and the flash drives. He found nothing relevant to allegations of
sexual abuse on the laptop, the camcorder, the digital camera, the memory card in the
digital camera, or one of the flash drives. On another flash drive, in a space where deleted
items are found, Taylor found photographs of a bed with no bedding, photographs of a
girl, and photographs of the girl with a man. None of the photographs was overtly sexual.
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Criminal charges and prosecution
On September 22, 2011, the State charged Willis with two counts of rape, two
counts of aggravated criminal sodomy, and two counts of aggravated indecent liberties
with a child, all off-grid person felonies. After the preliminary hearing, the State asked to
amend the information. The district court granted the request, and the State amended the
information to charge an additional three counts of aggravated indecent liberties with a
child, to charge an additional three counts of aggravated criminal sodomy, and to charge
the rape counts in the alternative as attempted rape.
Both parties filed a number of pretrial motions. The district court heard argument
and resolved most of the motions at a hearing on November 30, 2012. We will discuss the
motions and the district court's ruling in more detail later in this opinion.
The jury trial began on March 25, 2013. The State presented testimony from
Nicole, who read into the record the objectionable Facebook message she had shared with
Newman. Newman and Jones testified as well. In addition to relating the information
above, Jones testified that since moving to Kansas City, J.N. had spent the night at Willis'
home a couple of times without her brothers and that Willis had once hired J.N. to clean
his kitchen. Cheney testified that she had seen Willis pick up J.N. in his truck. The State
played for the jury Jones' 911 call reporting that her ex-husband had molested J.N.
Panjada testified about responding to that call and her contact with Jones and J.N.
Harper and Lynn testified about the search of Willis' home. Taylor testified about what he
found—and did not find—in his examination of the electronics seized in the search.
During his testimony, the State admitted the deleted photographs Taylor discovered on
one flash drive. Weiss testified, and the State showed the jury the recording of Weiss'
interview with J.N. at the Sunflower House. Etherton-Still testified that she diagnosed
child sexual abuse based on J.N.'s history despite the fact that she had a normal exam. On
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cross-examination, however, Etherton-Still admitted that her report stated that based on
the exam, she neither confirmed nor denied the sexual abuse allegations.
J.N. testified on the last day of the State's case-in-chief. She described incidents in
which Willis touched her vagina with his hand, touched her vagina with his penis,
touched her breasts, put his penis in her mouth, and attempted to put his penis and his
finger in her vagina. She also testified that Willis established both Facebook accounts for
her—the one in her own name and the one under the name Jade—and that Willis
established an email address under Jade's name.
After the State rested its case, Willis moved for a directed verdict on some of the
counts. The State and the district court agreed that three of the counts of aggravated
indecent liberties with a child were not supported by sufficient evidence, so the court
dismissed those counts. When the trial resumed, Willis presented testimony from two of
his children, Attelia and Taurus Willis. They testified generally that J.N. did not stay at
the house during some of the times that J.N. had testified she visited Willis.
Finally, Willis testified on his own behalf. He explicitly denied touching J.N.
sexually, trying to put his penis in J.N., and taking naked photographs or videos of her.
Willis also denied setting up any email or Facebook accounts for J.N. but admitted that
he had communicated with J.N. and her siblings through Facebook. Although he also
conceded that J.N. had been to his house in Kansas City, Willis testified that she was
there with her brothers and cousins and they all stayed outside of the house except when
J.N. went inside to use the restroom. Willis likewise freely admitted that J.N. had been
inside his truck and that he had been alone with J.N. one day when J.N.'s school called
and said she was ill. After Willis testified, the defense rested.
The district court instructed the jury, and counsel made closing arguments. After
deliberating for several hours over 2 days, the jury reached a verdict. The jury found
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Willis guilty of two counts of aggravated indecent liberties with a child, one count of
aggravated criminal sodomy, and one count of attempted rape. The jury acquitted Willis
of four counts of aggravated criminal sodomy and one count of attempted rape.
Prior to sentencing, Willis filed a motion for new trial, which the district court
subsequently denied. Willis also filed a motion for a departure sentence asking for a
departure to the sentencing guidelines grid and a separate motion asking for a further
downward durational departure from the applicable guidelines presumptive sentence. At
the sentencing hearing on June 14, 2013, the district court found that there were no
substantial and compelling reasons to grant a departure sentence. Accordingly, the district
court denied Willis' motions and sentenced him to a hard 25 sentence for each conviction,
to run concurrently. Willis timely appealed the district court's judgment.
DISCOVERY REQUESTS
Willis first contends that the district court erred by denying his discovery requests.
Specifically, Willis argues that the district court erred in (1) denying him personal copies
of discovery and (2) denying his request for documents relating to later rape charges and
a missing person investigation involving J.N. Willis claims these errors require reversal
of his convictions or, at least, a remand for the district court to conduct an in camera
inspection of the documents in question. The State responds that Willis was not entitled
to personal copies of discovery or to discovery on the subsequent incidents involving J.N.
The parties agree that an appellate court generally reviews a district court's
discovery order for abuse of discretion. See State v. Johnson, 297 Kan. 210, 215, 301
P.3d 287 (2013). A judicial action constitutes an abuse of discretion if the action (1) is
arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an
error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). To the extent that the
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resolution of a discovery request requires statutory interpretation, however, an appellate
court has unlimited review. See State v. Jolly, 301 Kan. 313, 320, 342 P.3d 935 (2015).
Personal copies of discovery
At a pretrial hearing on March 29, 2012, Willis asked to be personally provided
with copies of all discovery given to his attorney; he wanted copies of the documents in
order to better assist in his defense. The State informed the district court that Wyandotte
County policy was to have an open file, "which means that defense attorneys and their
clients are entitled to have everything" and, in exchange for this policy, Wyandotte
County "ask[s] defense counsel not to provide personal copies of that with their
client[s]." Although the State did not object to defendants reviewing discovery, it
preferred that defendants not have personal copies. The district court denied Willis'
request, reasoning that Willis' counsel had the discovery and could go over it with him.
At the time of Willis' request for personal copies of discovery, the controlling
statute was K.S.A. 2011 Supp. 22-3212, which stated in relevant part: "Upon request, the
prosecuting attorney shall permit the defendant to inspect and copy or photograph"
certain specified discovery items, if relevant. (Emphasis added.) In addition, K.S.A. 22-
3213(2) stated:
"After a witness called by the state has testified on direct examination, the
court shall, on motion of the defendant, order the prosecution to produce any
statement (as hereinafter defined) of the witness in the possession of the
prosecution which relates to the subject matter as to which the witness has
testified. If the entire contents of any such statement relate to the subject matter of
the testimony of the witness, the court shall order it to be delivered directly to the
defendant for his examination and use." (Emphasis added.)
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The question of personal copies of discovery came up again during the hearing on
Willis' motion for new trial. The district judge noted the previous denial but stated:
"Here in the last few months, the Supreme Court—I believe it's [State v. Marks, 297 Kan.
131, 298 P.3d 1102 (2013)] is the case that came out that said, 'Well, you can't do that.
That's a violation of the statue.' So clearly that was an error.
"However, the Marks case went on to find that under the circumstances of that
case, it did not constitute reversible error. That the defendant had the necessary
discovery. That it didn't really—that it didn't affect the outcome of the trial in any way
and did not ultimately prejudice the defendant. And I think we've got the same situation
here that the Supreme Court detailed in the Marks case.
"So while certainly under the statute the defendant should have been provided
with copies of—not everything, but certain things according to the statute, I'm going to
find, as the Supreme Court did in Marks, that it did not affect the outcome of this case. It
did not unduly prejudice him."
On appeal, Willis cites State v. Marks, 297 Kan. 131, 298 P.3d 1102 (2013), for
the proposition that the denial of his motion for personal copies of discovery materials
was error. In Marks, the Kansas Supreme Court held: "The district court erred to the
extent it held that K.S.A. 22-3212 and K.S.A. 22-3213 do not authorize a defendant to
have personal copies of discovery and witness statements." 297 Kan. at 148.
The State briefly argues that because the legislature since has amended K.S.A. 22-
3212 and K.S.A. 22-3213 to reflect that "the defense" is entitled to discovery rather than
"the defendant," Willis was not statutorily entitled to receive personal copies of
discovery. However, the State fails to argue or explain why the amendments should apply
retroactively to Willis' case. A point raised incidentally in a brief and not argued therein
is deemed abandoned. See State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013).
Similarly, in Marks, our Supreme Court noted that the legislature had "amended K.S.A.
22-3212 since Marks' trial, but the parties do not argue [how] those amendments impact
our analysis." 297 Kan. at 147.
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At the time Willis requested personal copies of discovery, the statutes in effect
were identical to those examined in Marks. "The Kansas Court of Appeals is duty bound
to follow the precedent of the Kansas Supreme Court. [Citation omitted.]" State v.
Vrabel, 301 Kan. 797, 809, 347 P.3d 201 (2015). Because the statutes in question here
were identical to the statutes in question in Marks, it is clear that, as the district judge
himself noted, the denial of Willis' request for personal copies of discovery was error.
We now turn to whether this error was harmless. In State v. Ward, 292 Kan. 541,
552-65, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012), our Supreme Court
held that to find an error harmless under K.S.A. 60-261, K.S.A. 60-2105, and the United
States Constitution, a Kansas court must be able to declare the error "did not affect the
party's substantial rights, meaning it will not or did not affect the trial's outcome." 292
Kan. at 565-66. The party benefitting from the error always bears the burden of proving it
harmless under this standard. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013).
The level of certainty by which a court must be convinced depends upon whether the
error implicates a federal constitutional right. Ward, 292 Kan. at 565-66.
"If an error infringes upon a right guaranteed by the United States Constitution,
we must be convinced beyond a reasonable doubt that the error did not affect the
outcome in light of the entire record. [Citation omitted.] If the error does not infringe
upon a constitutional right, we apply the harmless error analysis of K.S.A. 60-261 and
K.S.A. 60-2105 to determine whether there is a reasonable probability that the error
affected the trial's outcome. [Citation omitted.]" Marks, 297 Kan. at 148.
The Marks court held that "[a] defendant's right to assistance in his or her defense
does not translate to a constitutional right to personal copies of discovery, particularly
when that discovery was already provided to his or her attorney. [Citations omitted.]" 297
Kan. at 149. Here, Willis' counsel acknowledged that he had been provided the discovery
in question. Therefore, the denial of Willis' request for personal copies did not implicate a
constitutional right and the nonconstitutional harmless error test applies.
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As the State argues, the record reflects that defense counsel had all of the
discovery and that he was able to cross-examine the State's witnesses. Although the State
bears the burden to show the error harmless, there is no evidence in the record that the
failure to provide Willis with personal copies of discovery affected the trial's outcome.
As the district court noted, Willis' counsel could "go over that information with him." The
district court did not restrict Willis from viewing the documents with counsel; it simply
denied his request for personal copies to keep in his cell. Based on the entire record, and
as our Supreme Court concluded in Marks, there is not a reasonable probability that the
error in denying Willis personal copies of discovery affected the trial's outcome. Thus,
the error was harmless and does not require reversal of Willis' convictions.
Discovery of the subsequent incidents involving J.N.
The second part of Willis' discovery argument deals with his request for any
documents relating to (1) subsequently prosecuted rape cases in which J.N. was the
alleged victim and (2) a missing person investigation for J.N. in April 2012. We must
provide some additional information to place this discovery request into context. In April
2012, J.N. ran away from home. Also in April 2012, the State charged another man with
the rape of J.N. in a separate criminal case. After further investigation, the State charged
two other men in additional criminal cases for raping J.N.
In a pretrial motion for discovery, Willis specifically requested
"a. A copy of any and all statements made to law enforcement by [J.N.],
regarding similarly alleged crimes.
"b. Any notes or written documents prepared by [J.N.], regarding similarly
alleged crimes.
....
"e. Any and all police reports, statements, notes or other information relating to
the Amber Alert/missing person investigation initiated in April 2012 involving [J.N.]"
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The State filed a motion in limine to exclude any evidence of the subsequent
incidents involving J.N. The discovery motion and the motion in limine were argued
together at a hearing on November 30, 2012. The State pointed out that the charges were
filed against Willis in September 2011 and argued that the incidents involving J.N. in
April 2012 were "too remote in time" to be relevant to Willis' case. The State also argued
that any information about J.N.'s sexual history with other men would be inadmissible at
Willis' trial. The State did not deny that it possessed written reports about the subsequent
incidents involving J.N. Also, the State did not claim that the requested discovery was
privileged or confidential, only that it was irrelevant to Willis' case.
Willis explicitly stated that he was not attempting to introduce details of the
alleged rapes. However, defense counsel argued that the documents included in the
discovery request may be relevant to establish motive. He explained that J.N. previously
had threatened to run away from home and it was Willis who had prevented her from
doing so. Defense counsel asserted that J.N. may have fabricated her allegations against
Willis in order to get him out of the picture so that he would not hamper her attempts to
run away. In particular, defense counsel asserted that J.N. left a note when she ran away
from home, and he wanted to be able to read the note to determine if it was in some way
related to the charges against Willis. Defense counsel also asserted that the information
included in the discovery request could help explain and place into context Willis'
Facebook messages to J.N. about her contacts with "older guys."
After hearing arguments of counsel, the district court denied Willis' motion for
discovery and granted the State's motion in limine to exclude any evidence of the
subsequent incidents involving J.N. Defense counsel sought clarification and asked, "Are
you saying that I'm not going to be allowed to talk about her—that running away from
her family situation from the amber alert, and the resulting investigation, I'm not going to
be able to talk about any of that?" The district court responded, "Correct." There is no
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indication in the record that the district court ever reviewed or examined the documents
included in Willis' discovery request about the subsequent incidents involving J.N.
Willis renewed the discovery issue in his posttrial motion for new trial.
Specifically, Willis asserted that the prohibition against evidence related to J.N. running
away prevented him "from offering evidence for his theory of the case that [J.N.]
fabricated her story in order to get [Willis] out of the picture so that he would not hamper
her attempts to get away." In denying the motion for new trial, the district court
reaffirmed its earlier denial of discovery, stating that the court remained unconvinced that
the later rape cases and running away were relevant in any way to the instant case.
On appeal, Willis argues that the district court erred in denying his requests for
discovery of the subsequent incidents involving J.N. without first examining the
documents subject to the discovery request. Willis asserts that this error requires reversal
of his convictions or, at least, a remand for the district court to conduct an in camera
inspection of the documents in question. The State reasserts its arguments that Willis was
not entitled to discovery of the documents concerning the April 2012 incidents involving
J.N. because the incidents were too remote in time and the discovery of information about
the subsequent rapes would not have led to admissible evidence at Willis' trial. The State
also argues that any error in the denial of the discovery request was harmless.
K.S.A. 2011 Supp. 22-3212(b)(1), in effect at the time Willis made his discovery
requests, stated:
"Upon request, the prosecuting attorney shall permit the defendant to inspect and
copy or photograph books, papers, documents, tangible objects, buildings or places, or
copies, or portions thereof, which are or have been within the possession, custody or
control of the prosecution, and which are material to the case and will not place an
unreasonable burden upon the prosecution."
16
Willis points this court to State v. Shoptaw, 30 Kan. App. 2d 1059, 1063-66, 56
P.3d 303, rev. denied 275 Kan. 968 (2002), and State v. Griswold, No. 94,835, 2006 WL
2440009, *1-4 (Kan. App. 2006) (unpublished opinion), to support his argument that the
district court erred by denying his request for discovery without first reviewing the
records in camera. In Shoptaw, the defendant issued a subpoena duces tecum to obtain the
alleged victim's mental health records from counseling that occurred before the crime. 30
Kan. App. 2d at 1063-64. Defense counsel did not explain the potential relevance of the
records; instead counsel requested the records "to 'give the defense an opportunity to
consult with an expert to see if there is, in fact, a mental condition which would have
something to do with the . . . case.'" 30 Kan. App. 2d at 1063. The mental health center
which held the records filed a motion to quash the subpoena based on doctor-patient
privilege. The district court granted the motion and quashed the subpoena, without first
reviewing the records in camera.
On appeal, this court reviewed the United States Supreme Court's opinion in
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), in which
the Court employed a due process analysis in holding that a criminal defendant was
entitled to an in camera review of potentially privileged records held by a state agency
which the defendant alleged might disclose exculpatory evidence. Shoptaw, 30 Kan. App.
2d at 1064. In Ritchie, the Court had ordered the district court to conduct such a review
and, if it found information that "'probably would have changed the outcome'" of the trial,
the district court must grant the defendant a new trial. 480 U.S. at 57-58.
Applying Ritchie, this court noted that Shoptaw had not articulated anything
specific in the records as being relevant to his case. 30 Kan. App. 2d at 1066. Despite that
failure, this court recognized that "it is impossible to say whether any of the information
contained in [the alleged victim's] record would have been material to Shoptaw's defense
because no one involved in the case looked at the subpoenaed records." 30 Kan. App. 2d
at 1066. Therefore, "in order to adequately protect Shoptaw's constitutional rights, as well
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as [the alleged victim's] interest in her privileged communications with the treatment
facility," this court ordered the district court to conduct an in camera review of the record
"to determine if there is any evidence that probably would have changed the outcome of
the trial." 30 Kan. App. 2d at 1066. If there was such evidence, "then Shoptaw would be
entitled to a new trial." 30 Kan. App. 2d at 1066.
Similarly, in Griswold, this court addressed the question of whether a district court
erred by denying a defendant's request to have the court conduct an in camera review of
the personnel files of two detectives involved in the case. 2006 WL 2440009, at *1. The
detectives had been suspended from a task force, and the Kansas Bureau of Investigation
(KBI) was investigating one of the detectives. Although the defendant admitted she did
not know the contents of the personnel files or the reasons for the suspensions or
investigation, she alleged that the personnel files might contain information about the
detectives' veracity, which would be at issue in the case. The district court denied the
discovery request, calling it "'a fishless fishing expedition'" and refused the request to
conduct an in camera review of the files on the ground that specific instances of bad
conduct would be inadmissible at trial. 2006 WL 2440009, at *2.
On appeal, this court noted that our Supreme Court has held that a defendant bears
the burden of showing the materiality and reasonableness of a discovery request. 2006
WL 2440009, at *3; see State v. Kessler, 276 Kan. 202, 212, 73 P.3d 761 (2003).
However, this court noted that Griswold could not demonstrate the materiality of her
request because, as she had told the district court, she did not know the contents of the
files. 2006 WL 2440009, at *3. This court recognized:
"This presents a Catch-22 for Griswold: as in Shoptaw, without an in camera inspection
by the court, there was no way of knowing whether the files contained material
information. Hence, it appears an in camera inspection of the files was warranted to
assess the materiality of the information contained therein. We find ourselves in the same
position as the Shoptaw court." 2006 WL 2440009, at *4.
18
Although not cited by Willis, we note that in State v. Riis, 39 Kan. App. 2d 273,
273-78, 178 P.3d 684 (2008), this court followed Griswold in holding that a district court
erred in denying the defendant's motion for an in camera inspection of reports from the
KBI's investigation of an officer involved in the defendant's case. The defendant filed the
motion after he pled no contest to the charges and was sentenced. The Riis court ordered
the district court to conduct an in camera inspection of the records, looking for evidence
concerning the officer's credibility and, if it found such evidence, the district court was
ordered to provide the evidence to Riis and reconsider his motion to withdraw his plea.
39 Kan. App. 2d at 278.
The State attempts to distinguish Griswold and Shoptaw by pointing out that
defense counsel in both cases requested an in camera review of the records, while Willis'
counsel did not. The record on appeal shows that Willis' counsel did not ask the district
court to review the requested documents in camera, but the State fails to explain how that
failure is fatal to the request. While it is certainly better practice for defense counsel to
explicitly request an in camera review in these circumstances, the State does not cite any
legal authority for the proposition that defense counsel was required to do so. Failure to
support a point with pertinent authority is akin to failing to brief the issue. State v. Tague,
296 Kan. 993, 1001, 298 P.3d 273 (2013).
We agree with the State that any evidence concerning J.N.'s subsequent rapes
would have been inadmissible at Willis' trial. But as Willis explained in arguing for his
discovery request, he was not attempting to introduce details of the alleged rapes. He was
more interested in the requested discovery documents to the extent that they might have a
bearing on J.N.'s motive to fabricate her allegations against Willis. The State's case
against Willis rested almost exclusively on the credibility of J.N.'s testimony. Perhaps the
requested discovery was relevant and would have led to admissible evidence; perhaps
not. But how could the district court rule with certainty that the requested discovery had
19
no relevance to the charges against Willis without ever reviewing the documents and
determining whether they contained information that could lead to admissible evidence?
Willis' counsel should have requested the district court to conduct an in camera
inspection of the records. Despite this failure, we conclude that the district court abused
its discretion in denying the discovery request without first reviewing the documents in
question. Under the reasoning of Shoptaw, Griswold, and Riis, we remand for the district
court to conduct an in camera review of the requested discovery and determine whether
the documents contain information that "'probably would have changed the outcome'" of
Willis' trial. See Shoptaw, 30 Kan. App. 2d at 1066. If the documents contain such
information, the district court must grant Willis a new trial. Otherwise, the district court
should deny the discovery request and Willis will have the opportunity to appeal such
ruling. In the event of any subsequent appeal, all documents reviewed in camera by the
district court should be sealed and included in the record on appeal.
Willis raises a separate issue that the district court erred by granting the State's
motion in limine excluding evidence of the subsequent incidents involving J.N. This issue
is rendered moot based on our disposition of the discovery issue.
EVIDENCE OF PRIOR CRIMES UNDER K.S.A. 60-455
Next, Willis argues that the district court violated his due process right to a fair
trial by admitting evidence of prior crimes under K.S.A. 60-455. The K.S.A. 60-455
evidence in question here was J.N.'s statements that Willis had sexually abused her in
Leavenworth County prior to the charged crimes, which occurred in Wyandotte County.
Prior to trial, the State filed a motion seeking approval of its plan to introduce the
evidence at trial, and the district court considered the motion at a pretrial hearing. The
district court ultimately ruled that the evidence was relevant to show the relationship
between the parties and to show "a continuing course of conduct."
20
During the trial, Panjada testified that J.N. stated that Willis sexually abused her as
far back as April 2007 in Leavenworth County. The State admitted the DVD recording of
J.N.'s forensic interview, in which J.N. alleged that Willis had sexually assaulted her in
Leavenworth County. J.N. personally testified that Willis began abusing her in
Leavenworth County. In his motion for new trial, Willis argued that the evidence was
improperly admitted because it was highly prejudicial and was probative only as
propensity evidence. In denying Willis' motion for new trial, the district court reaffirmed
its reasoning from the pretrial motions hearing and ruled that the evidence was properly
admitted. Willis now argues on appeal that admission of the evidence as propensity
evidence violated his due process right to a fair trial.
As the State notes in its brief, there are a number of reasons this court should not
reach the merits of Willis' argument. Willis objected to the K.S.A. 60-455 evidence at
various times during the trial. By the time Willis made those objections, however,
evidence that Willis sexually abused J.N. in Leavenworth County prior to the charged
crimes had already been admitted, absent any objection, through Panjada's testimony.
Thus, Willis failed to satisfy his burden to timely object to the admission of the evidence
below. See State v. King, 288 Kan. 333, 348-49, 204 P.3d 585 (2009).
In addition, to the extent Willis did object to the admission of the evidence at trial,
he never raised the due process argument he is asserting on appeal. Generally, a party
may not raise a constitutional claim for the first time on appeal. See State v. Noyce, 301
Kan. 408, 410, 343 P.3d 105 (2015). There are three exceptions to this general rule:
"'(1) The newly asserted claim involves only a question of law arising on proved or
admitted facts and is determinative of the case; (2) consideration of the claim is necessary
to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the
district court is right for the wrong reason. [Citation omitted.]' [Citation omitted.]" State
v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).
21
Here, Willis alleges that the first exception applies. He correctly states that
whether a statute violates a defendant's due process rights is a question of law. See State
v. Smith-Parker, 301 Kan. 132, 165, 340 P.3d 485 (2014). He also claims that "[t]he facts
underlying the admission of the prior crimes evidence are not disputed." Willis makes no
further attempt to explain how this issue is "determinative of the case."
Willis has failed to establish that the first exception applies to permit him to raise a
constitutional argument for the first time on appeal. Even though Willis correctly asserts
that the new claim involves only a question of law, he fails to show how the resolution of
the constitutional issue is determinative of the case. Here, the allegations that Willis
sexually abused J.N. in Leavenworth County were not a major focus of the trial. The
Leavenworth County incidents were mentioned at the trial in a general way and only to
provide the jury with background information about the case. The evidence was briefly
mentioned by the prosecutor during closing argument. Even if Willis can establish that
the district court erred in admitting the K.S.A. 60-455 evidence, such a ruling would not
be dispositive of the appeal. See State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006)
(error in admitting evidence under K.S.A. 60-455 may be harmless).
Moreover, Willis fails to challenge on appeal the district court's stated reasons for
admitting the K.S.A. 60-455 evidence. Here, the district judge explicitly stated that he
was not allowing the evidence as propensity evidence and was instead allowing it to show
the relationship between the parties and a continuing course of conduct. "When a district
court provides alternative bases to support its ultimate ruling on an issue and an appellant
fails to challenge the validity of each alternative basis on appeal, an appellate court may
decline to address the appellant's challenge to the district court's ultimate ruling." State v.
Novotny, 297 Kan. 1174, Syl. ¶ 1, 307 P.3d 1278 (2013).
In sum, Willis failed to contemporaneously object at the first admission of the
evidence he now wishes to challenge; he has failed to explain persuasively why this court
22
should make an exception to the general rule that a party may not raise a constitutional
claim for the first time on appeal; and he has failed to challenge the two bases the district
court articulated on the record for admitting the evidence. For these reasons, we conclude
that Willis' due process challenge is not properly before this court, and we decline to
reach the merits of Willis' constitutional claim for the first time on appeal.
LIMITING INSTRUCTION REGARDING K.S.A. 60-455 EVIDENCE
Next, Willis claims that the district court gave the jury an erroneous limiting
instruction regarding the K.S.A. 60-455 evidence. Specifically, the district court
instructed the jury that evidence had been admitted "tending to prove" that Willis
committed crimes other than those charged; the district court denied Willis' request to
modify the language to say that evidence had been admitted "alleging" that Willis
committed other crimes. Willis contends that the erroneous instruction improperly
bolstered J.N.'s credibility and violated his right to a fair trial. In response, the State
contends that the jury instruction was legally appropriate, that the district court was not
required to deviate from the language of the Pattern Instructions for Kansas (PIK)
instruction, and that any error in the jury instruction was harmless.
At the time of Willis' trial, the PIK instruction used to limit the jury's consideration
of evidence of other crimes stated: "Evidence has been admitted tending to prove that the
defendant committed (crimes) (a crime) other than the present crime charged. This
evidence may be considered solely for the purpose of proving the defendant's [relevant
purpose of evidence, i.e., motive, opportunity, intent, etc.]." See PIK Crim. 3d 52.06.
Prior to the end of the trial, Willis filed a proposed supplemental jury instruction
that requested two changes to the PIK instruction: (1) stating that evidence had been
admitted "alleging" Willis committed other crimes; as opposed to stating that evidence
had been admitted "tending to prove" Willis committed other crimes, and (2) instructing
23
the jury to consider the evidence solely for the purpose of "considering" whether there
was a relationship or continuing course of conduct; as opposed to instructing the jury to
consider the evidence solely for the purpose of "proving" whether there was a
relationship or continuing course of conduct.
The district court approved the latter change but denied the former, stating, "That
part [of the instruction] I'm not willing to change. I'm not going to—that's the PIK
language, what I've got, and I'm going to stick with PIK." Thus, the district court gave the
following limiting instruction to the jury: "Evidence has been admitted tending to prove
that the defendant committed crimes other than the present crimes charged. This evidence
may be considered solely for the purpose of considering whether there was a relationship
and continuing course of conduct between the defendant and J.N."
"'For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied___ U.S. ___, 132 S. Ct. 1594 (2012).'" State
v. Salary, 301 Kan. 586, 592, 343 P.3d 1165 (2015).
"An appellate court examines jury instructions as a whole, without focusing on
any single instruction, in order to determine whether they properly and fairly state the
applicable law or whether it is reasonable to conclude that they could have misled the
jury." State v. Williams, 42 Kan. App. 2d 725, Syl. ¶ 1, 216 P.3d 707 (2009), rev. denied
290 Kan. 1104 (2010); see also State v. Hilt, 299 Kan. 176, 184-85, 322 P.3d 367 (2014).
Although the use of PIK instructions is not required, it is strongly recommended, as these
24
"instructions have been developed by a knowledgeable committee to bring accuracy,
clarity, and uniformity to jury instructions. [Citation omitted.]" State v. Acevedo, 49 Kan.
App. 2d 655, 668-69, 315 P.3d 261 (2013); see also State v. Dixon, 289 Kan. 46, Syl. ¶
10, 209 P.3d 675 (2009).
As Willis states, he properly preserved this issue for appellate review by proposing
an amended instruction and objecting to the district court's failure to adopt it. On appeal,
Willis does not argue that the district court erred in giving a limiting instruction; instead,
he argues that the district court erred by denying his request to modify the wording of the
limiting instruction. As Willis points out, the evidence admitted of the prior crimes was
solely J.N.'s allegations that Willis sexually abused her as far back as April 2007 in
Leavenworth County. Willis argues that by instructing the jury that this evidence
"tend[ed] to prove" that Willis committed the prior crimes, the district court improperly
bolstered J.N.'s credibility in the eyes of the jury.
The State points out that Kansas appellate courts generally advise Kansas district
courts to use PIK instructions. See Dixon, 289 Kan. 46, Syl. ¶ 10. However, our Supreme
Court also has stated that if "'the particular facts in a given case require modification of
the applicable pattern instruction or the addition of some instruction not included in PIK,
the trial court should not hesitate to make such modification or addition.'" State v.
Appleby, 289 Kan. 1017, 1061, 221 P.3d 525 (2009).
We agree with Willis that the limiting instruction regarding the K.S.A. 60-455
evidence would have been improved by modifying the language to read: "Evidence has
been admitted 'alleging' that the defendant committed crimes other than the present
crimes charged." When K.S.A. 60-455 evidence consists of a prior conviction, the
"tending to prove" language is appropriate. But when the defendant is disputing that the
uncharged conduct ever occurred, and the K.S.A. 60-455 evidence does not consist of a
25
prior conviction, the better practice would be to change the language of the limiting
instruction from "tending to prove" to "alleging."
Nevertheless, we do not find that the district court erred by giving the limiting
instruction. As we previously stated, an appellate court examines jury instructions as a
whole, without focusing on any single instruction, in order to determine whether they
properly and fairly state the applicable law and could not have misled the jury. See Hilt,
299 Kan. at 184-85. Here, the district court also instructed the jury: "It is for you to
determine the weight and credit to be given the testimony of each witness." This explicit
instruction undermines Willis' argument that the limiting instruction given by the district
court unfairly bolstered J.N.'s credibility. This conclusion is supported by the fact that the
jury acquitted Willis of five of the nine charges against him. While the better practice in
cases such as this one would be to change a limiting instruction's language from "tending
to prove" to "alleging," we conclude that the jury instructions as a whole properly and
fairly stated the applicable law and could not have misled the jury. Thus, we reject Willis'
claim that he is entitled to a new trial based on erroneous jury instructions.
PROSECUTORIAL MISCONDUCT
Next, Willis claims that the prosecutor committed misconduct during closing
argument that violated his right to a fair trial. The State argues that the statements
complained about by Willis were not misconduct and, if they were, they do not warrant
reversal of Willis' convictions.
An appellate court uses a two-step process to review allegations of prosecutorial
misconduct in closing argument:
"'First, an appellate court determines whether there was misconduct, i.e., whether
the prosecutor's comments were outside the wide latitude allowed in discussing the
evidence. Second, if misconduct is found, the appellate court determines whether those
comments compel reversal, i.e., whether the statements prejudiced the jury against the
26
defendant and denied the defendant a fair trial.' [Citation omitted.]" State v. Knox, 301
Kan. 671, 682, 347 P.3d 656 (2015).
The first comment Willis challenges occurred at the beginning of closing
argument, when the prosecutor said:
"'I miss us sitting around talking while Jade try and convince me to let her have
company with her horny self. Is she still like she used to be, wanting to date older guys
and still very horny? You know her better than I do. So is she?'
....
"In this case, ladies and gentlemen, this Facebook message is a big deal. It's a
very big deal. It can't be ignored. He tried to be clever. It almost slipped under the radar.
Thank goodness it didn't." (Emphasis added.)
Willis characterizes the italicized language as an improper comment on his
credibility. Willis argues that the comment implies that he was not telling the truth and
was trying to "trick the jury." It is well established that a prosecutor cannot express a
personal opinion on the credibility of a witness. Knox, 301 Kan. at 685.
We disagree that the prosecutor's statement in this instance was an improper
comment on Willis' credibility. As the State points out, the prosecutor was talking about
the Facebook message Willis sent J.N. Rather than implying that Willis was trying to
"trick the jury" or was otherwise not credible, the prosecutor appears to have been
arguing that Willis was trying to be clever by contacting J.N. through Facebook using a
fictitious name so that other family members would not be aware of the communication.
This particular statement by the prosecutor does not constitute misconduct.
The second set of comments that Willis challenges occurred when the prosecutor
stated during closing argument:
27
"Ways we know the defendant's guilty in this case. This is the rest of my
argument.
"First of all, he had the opportunity to do it. He works in the church. He's a
pastor—some sort of a pastor. He's raised four girls. You know, he's given access to
[J.N.] as a trusted person in her life. So he has all the opportunity in the world, and he
takes advantage of it.
"She—her mother was in prison when she's born. You've heard that. She's not as
close to her father. He's not the father figure that LaMar was able to be. She's one of
eight kids. She probably craves a little bit of extra attention. She felt her mom paid more
attention to her brothers than her.
"Those are some things he took advantage of from her." (Emphasis added.)
Willis argues that the italicized language was impermissible because it improperly
inflamed the passions of the jury by implying that Willis "was acting like a predator" and
"creating an environment upon [which] he could prey on J.N." Willis bases his "predator"
claim on State v. Maybin, 27 Kan. App. 2d 189, 198-99, 2 P.3d 179, rev. denied 269 Kan.
938 (2000), in which this court held that referring to a defendant as a predator was
prosecutorial misconduct designed to inflame the passion and prejudice of the jury.
As the State points out, the prosecutor never referred to Willis as a "predator."
Everything the prosecutor said in the challenged section was based on facts in evidence.
Nicole testified that Willis had worked in a church; Jones testified that she gave Willis
access to J.N. because she trusted him and considered him J.N.'s father; Jones testified
that Willis had applied to be the pastor at her church; J.N. testified that she was not close
to her biological father; and Willis testified that Jones was incarcerated when J.N. was
born. The prosecutor's comments in this instance were not misconduct. See State v.
Longoria, 301 Kan. 489, 524, 343 P.3d 1128 (2015) (stating that a prosecutor has wide
latitude in crafting arguments and drawing reasonable inferences from admitted
evidence). Because none of the prosecutor's statements constituted misconduct, we need
not progress to the second prong of the analysis to determine if there was reversible error.
28
CUMULATIVE ERROR
Next, Willis argues that even if no individual error merits reversal, this court
should nevertheless reverse his convictions because of the cumulative effect of errors. In
response, the State reasserts its position that the record does not support any of Willis'
allegations of error.
"Cumulative trial errors, when considered collectively, may require reversal of the
defendant's convictions when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. [Citation omitted.]" State v. Lewis, 301
Kan. 349, 384, 344 P.3d 928 (2015). "Given that the reversibility test for cumulative error
utilizes a totality of the circumstances approach, an appellate court must necessarily
'review the entire record and engage in an unlimited review.' [Citation omitted.]" State v.
Williams, 299 Kan. 1039, 1050, 329 P.3d 420 (2014).
Here, only two of Willis' arguments are successful—(1) that the district court erred
in denying his request for personal copies of discovery materials and (2) that the district
court erred in denying his motion for discovery of the subsequent incidents involving J.N.
However, we are remanding the second issue to the district court to conduct an in camera
inspection of the materials sought. Thus, the only instance of harmless error in Willis'
case was the denial of his request for personal copies of discovery materials.
Our Supreme Court has held that "[t]he cumulative error doctrine does not apply if
no error or only one error arguably supports reversal." State v. Ortega, 300 Kan. 761,
Syl. ¶ 6, 335 P.3d 93 (2014). Because we have found only one error for which Willis is
obtaining no relief, the cumulative error doctrine does not apply.
29
MOTIONS FOR A DEPARTURE SENTENCE
Finally, Willis argues that the district court erred in denying his motions for a
departure sentence. He contends that the district court abused its discretion when it found
no substantial and compelling reasons existed to impose a departure. The State responds
by noting that mitigating factors do not require a departure and arguing that the district
court did not abuse its discretion in denying Willis' motions.
Under a law commonly known as Jessica's Law, the presumptive sentence for each
of Willis' four convictions was "imprisonment for life with a mandatory minimum term
of imprisonment of not less than 25 years," also called a hard 25. See K.S.A. 2011 Supp.
21-6627(a)(B)-(D). If the sentencing judge finds "substantial and compelling reasons,
following a review of mitigating circumstances," however, the judge can depart from the
hard 25 to the sentence pursuant to the Revised Kansas Sentencing Guidelines. See
K.S.A. 2011 Supp. 21-6627(d)(1). K.S.A. 2011 Supp. 21-6627(d)(2) provides a
nonexclusive list of mitigating factors a court might consider when deciding whether
substantial and compelling factors exist to justify a departure sentence.
An appellate court reviews for abuse of discretion a district court's determination
that there were not substantial and compelling reasons to depart from a Jessica's Law
sentence. State v. Randolph, 297 Kan. 320, 336, 301 P.3d 300 (2013). A judicial action
constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable;
(2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299
Kan. 1, 3, 319 P.3d 1253 (2014).
Willis filed a motion and asserted the following as substantial and compelling
reasons for the district court to grant a departure to the guidelines sentence: (1) he had no
criminal history; (2) he was almost 50 years old, which meant that under a hard 25 he
would not be eligible for parole until he was approximately 75 years old; (3) he was a
30
father, with grown daughters who testified at trial that he was a good father; (4) he was a
grandfather; (5) he had strong support from family and friends; (6) he maintained his
innocence and was convicted despite a lack of physical evidence; and (7) throughout his
life, Willis had helped others and had been a preacher, a day-care provider, and a city
worker, all without accusation of improper behavior. Willis also filed a second motion for
departure, citing the same substantial and compelling reasons and asking the district court
to further depart downward to half the applicable guidelines sentence. That was the
lowest departure the court could grant, since Willis had been convicted of a statutorily
defined "crime of extreme sexual violence." See K.S.A. 2011 Supp. 21-6818(a).
At the sentencing hearing, Willis' counsel reminded the district court that the jury
deliberated for several hours and ultimately acquitted Willis on more than half of the
charges. Willis' sister spoke on Willis' behalf, arguing that the charges were not true,
stating that she trusted Willis with her own children, and asking for leniency for Willis.
Willis' brother also spoke, requesting leniency for Willis. Willis spoke on his own behalf,
reasserting his innocence and asking for mercy from the sentencing court.
The district judge addressed the departure motions at length. The judge examined
each of Willis' asserted substantial and compelling reasons for departure, noting that the
following were mitigating circumstances: (1) Willis had no criminal history, (2) his age,
and (3) evidence of his good character. The judge also noted, however, that the jury had
convicted Willis of four serious crimes. Ultimately, the district judge stated:
"I have carefully considered the mitigating factors which do exist which I have
mentioned on the record, compared them with the testimony in the case which the jury
accepted beyond a reasonable doubt, and on that basis I'm going to find that substantial
and compelling reasons have not—I cannot find those reasons substantial and compelling
enough to depart from the statutorily prescribed sentence, which has a clear legislative
purpose, which has been stated and reviewed many times by our appellate courts."
31
As the State points out, a district court is not obligated to grant a departure
sentence simply because mitigating factors exist. See State v. Jolly, 301 Kan. 313, 323,
342 P.3d 935 (2015). Here, the district court carefully considered the proposed mitigating
factors and found that they did not justify a departure from the statutorily prescribed
sentence. The district court's decision to deny the departure sentence was not arbitrary,
fanciful, or unreasonable, and the decision was not based on an error of law or fact. Thus,
we conclude the district court did not abuse its discretion in denying Willis' motions for a
departure sentence.
CONCLUSION
In conclusion, we agree with Willis' claim that the district court erred in denying
his requests for discovery of the subsequent incidents involving J.N. without first
reviewing the documents in question. Thus, we remand for the district court to conduct an
in camera review of the requested discovery and determine whether the documents
contain information that probably would have changed the outcome of Willis' trial. If the
documents contain such information, the district court must grant Willis a new trial.
However, we affirm the district court's judgment on all remaining claims.
Affirmed in part, reversed in part, and remanded with directions.
32