State v. Jackson

No. 123,122
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
LELAND L. JACKSON III,
Appellant.
SYLLABUS BY THE COURT
1.
The commercial sexual exploitation of a child statute under K.S.A. 2018 Supp. 21-
6422(a)(1) requires proof of knowing conduct. PIK Crim. 4th 64.091 (2017 Supp.)
erroneously omits the required culpable mental state. The omission is subject to a
harmless error analysis.
2.
Selecting a foreperson is not a part of jury deliberations, and the participation of
an alternate juror in said selection is not presumptively prejudicial requiring the reversal
of a conviction.
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed October 15, 2021.
Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., SCHROEDER, J., and WALKER, S.J.
1
ARNOLD-BURGER, C.J.: Leland L. Jackson III appeals his convictions for
aggravated indecent liberties with a child, commercial sexual exploitation of a child, and
indecent liberties with a child. Jackson raises several claims of trial error, including:
(1) The trial court failed to instruct the jury his actions needed to be done knowingly to
support the commercial sexual exploitation of a child charge; (2) the jury was tainted
when the alternate juror was allowed to participate in selecting the foreperson; (3) the
prosecutor made improper statements on jury nullification during closing arguments; and
(4) the cumulative effect of these errors violated Jackson's constitutional right to a fair
trial. Finding no error, we affirm Jackson's convictions.
FACTUAL AND PROCEDURAL HISTORY
On an afternoon in May 2019, I.W., M.C., and K.H. were all walking to M.C.'s
house after purchasing snacks from a QuikTrip in Wichita, Kansas. I.W. and M.C. were
both 15 years old at the time, and K.H. was 16 years old. A man—later identified as
Jackson—pulled up next to them in his car and asked if they knew where to get any
marijuana. The girls got into Jackson's vehicle and accompanied him to a liquor store,
then a smoke shop, and ultimately a hotel room. While the three girls were in the hotel
room with Jackson, he had M.C. help him obtain an erection and then he had sex with
I.W. in exchange for money.
During later interviews with police officers, I.W. and M.C. at first denied having
any sexual contact with Jackson. M.C. eventually disclosed that she gave Jackson a "hand
job" in exchange for $20, and I.W. admitted that Jackson offered her money in exchange
for sex. A detective also interviewed Jackson, who admitted to paying I.W. and M.C. for
sexual contact.
The State brought several charges against Jackson. As to I.W., the State charged
Jackson with aggravated indecent liberties with a child and commercial sexual
2
exploitation of a child. As to M.C., the State charged him with one count of indecent
liberties with a child and one count of commercial sexual exploitation of a child.
The case proceeded to trial with Jackson representing himself. M.C., K.H., and
I.W. testified on the State's behalf, offering identical versions of what had occurred.
All three girls testified they were walking back from QuikTrip when Jackson
approached them in his vehicle. He asked if they knew where he could purchase
marijuana, then showed them a bottle of alcohol and they got into his vehicle. While in
the car, Jackson discussed having sex with the girls in exchange for money and they all
eventually ended up in a hotel room. Once there, the girls began smoking marijuana and
drinking and at some point, Jackson took his clothes off. M.C. testified that she received
$20 from Jackson after she used her hand and "made him hard." After that, Jackson and
I.W. had sex on the bed while M.C. and K.H. sat by the bathroom. The girls agreed
Jackson gave I.W. money at some point, but the amount was unclear. K.H. believed it
was "like hundreds," while I.W. testified she received either $60 or $100 and that M.C.
received $40.
Jackson also testified on his own behalf at trial. On the stand, he admitted
repeatedly to having sex with I.W. and paying her. As for M.C., however, Jackson said he
did not pay her any money for sexual contact, but that M.C. initiated oral sex "on her
own." Jackson also believed the girls were stealing from him, in particular because he
saw I.W. taking money from the visor of his car but he "didn't fight that because [he]
assumed that the deal was on anyway." He also claimed that all three girls stated they
were 18 years old while at the hotel, which he believed because "[t]hey were all grown[,]
talking grown, acting grown." Jackson said that I.W. on "that day passed as 25 years old,
easy," so he "was shocked that [I.W.] said she was 18 because [he] picked the safe
person, [he] thought, to have sex with."
3
During closing arguments, Jackson directed the jury's attention to Instruction
No. 8—the elements of Count 1—which provided in part: "The State need not prove the
defendant knew the child's age." Jackson explained:
"[The prosecutor] said that that law was there to prevent people from committing
that crime and I disagree. That law is there to prevent people from having the defense
who may have gotten into a situation like I did. That law is there to say, hey, no matter
what you say, this is what the law says. You have to follow the law. That's what that law
is there for. And fortunately, there is a lot of people who have made the same mistake
that I made that are in this very county jail."
The trial court sustained the State's objection to that statement as being irrelevant
and improper. Jackson then closed by stating, "I just want you all to keep that in mind
when you are deliberating. Thank you." The prosecutor responded with the following:
"I just ask you to keep in mind the story of woe is not a defense. What he's essentially
asking you to do is just to ignore the law because—well, because he wants you to. You
took an oath to uphold the law and I'm asking you to do that."
After closing arguments, the trial court sent the jurors back to the jury room and
instructed them to begin deliberations by selecting the presiding juror. After a brief
recess, the court went back on the record and noted from the bench that it had
inadvertently neglected to identify the alternate juror. The court advised the alternate
juror he would not participate in deliberations unless one of the original twelve jurors
could not participate anymore, and he would be separated from the others in the library
during deliberations. The following exchange then occurred:
"[THE COURT:] Record should reflect that it was a matter of a minute or so
from the time that you went back into the jury deliberation room with the other jurors and
you did not participate in any deliberations back there; correct, sir?
"FOREPERSON: We had just elected the foreman.
4
"THE COURT: Okay. Thank you. If you'll have a seat back there. If nothing
further, we'll stand in recess."
After deliberating, the jury found Jackson guilty on Counts 1, 2, and 3, and not
guilty on Count 4 (commercial exploitation of M.C.). Jackson was ultimately sentenced
to a total sentence of 324 months in prison and ordered lifetime postrelease supervision.
Jackson timely appealed.
ANALYSIS
I. THE DISTRICT COURT DID NOT COMMIT REVERSIBLE ERROR BY FAILING TO
INSTRUCT THE JURY ON THE CULPABLE MENTAL STATE REQUIRED FOR
COMMERCIAL SEXUAL EXPLOITATION OF A CHILD.
At the conclusion of the evidence, the court instructed the jury:
"The defendant is charged with commercial sexual exploitation of a child. The
defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant hired [I.W.] by giving, offering, or agreeing to
give, anything of value to any person.
"2. The defendant hired [I.W.] to engage in sexual intercourse.
"3. At the time of the act, [I.W.] was less than 18 years old. The
State need not prove the defendant knew the child's age.
5
"4. This act occurred on or between the 3rd day of May, 2019, and
the 4th day of May, 2019, in Sedgwick County, Kansas."
As both parties note, the instruction plainly omits the culpable mental state
required for the offense. K.S.A. 2018 Supp. 21-5202(a) ("Except as otherwise provided, a
culpable mental state is an essential element of every crime defined by this code. A
culpable mental state may be established by proof that the conduct of the accused person
was committed 'intentionally,' 'knowingly' or 'recklessly.'"). The district court must
instruct on the culpable mental state necessary for a conviction of a charged offense
unless the statutory definition "plainly dispenses with any mental element." K.S.A. 2018
Supp. 21-5202(d).
That said, the instruction given mirrors the recommended pattern instruction for a
commercial sexual exploitation of a child charge under K.S.A. 2018 Supp. 21-6422(a)(1).
See PIK Crim. 4th 64.091 (2017 Supp.). But that does not require this court to approve
the jury instruction despite the omission. Although the Kansas Supreme Court "'strongly
recommend[s]'" the use of PIK instructions, it has also recognized that a trial court should
not hesitate to modify or add to pattern instructions where "'the particular facts in a given
case require modification of the applicable pattern instruction or the addition of some
instruction not included in PIK.'" State v. Bernhardt, 304 Kan. 460, 470, 372 P.3d 1161(2016). The commercial sexual exploitation of a child statute requires proof of knowing
conduct. PIK Crim. 4th 64.091 (2017 Supp.) erroneously omits the required culpable
mental state. The omission is subject to a harmless error analysis.
Jackson argues that this omission constitutes reversible error. He contends the
omission of this essential element of the offense deprived the jury of the opportunity to
find him guilty beyond a reasonable doubt, thus amounting to structural error and
requiring reversal of his conviction on Count 2.
6
Because Jackson admittedly did not object to the jury instruction at or before trial,
and there is no dispute that Jackson's proposed instruction on appeal is both legally and
factually appropriate, this court applies what is known as the clear error standard to
determine if the instructional error merits reversal. Under that standard, we do not reverse
the conviction unless we are firmly convinced that the jury would have reached a
different verdict if the instruction error had not occurred. State v. McLinn, 307 Kan. 307,
318, 409 P.3d 1 (2018); see K.S.A. 2020 Supp. 22-3414(3) ("No party may assign as
error the giving or failure to give an instruction . . . unless the party objects thereto before
the jury retires to consider its verdict . . . unless the instruction or the failure to give an
instruction is clearly erroneous."); see also Neder v. United States, 527 U.S. 1, 17, 119 S.
Ct. 1827, 144 L. Ed. 2d 35 (1999) ("[W]here a reviewing court concludes beyond a
reasonable doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been the same absent the
error, the erroneous instruction is properly found to be harmless."); State v. Daniels, 278
Kan. 53, 62, 91 P.3d 1147 (2004) (adopting test from Neder and holding that omission of
bodily harm element from aggravated robbery instruction was harmless where bodily
harm was uncontested and supported by overwhelming evidence). Jackson bears the
burden as the party claiming error to demonstrate the necessary prejudice. 307 Kan. at
318.
Despite acknowledging that Kansas appellate courts have "repeatedly" applied the
harmless error standard to review similar challenges, Jackson urges this court to review
his claim for structural error. An appellate court's consideration of whether an error is
structural or whether it may instead be declared harmless is a question of law over which
appellate courts have unlimited review. State v. McDaniel, 306 Kan. 595, 600, 395 P.3d
429 (2017).
"Structural errors 'are so intrinsically harmful as to require automatic reversal (i.e.,
"affect substantial rights") without regard to their effect on the outcome.' Neder[, 527
7
U.S. at 7]." State v. Hill, 271 Kan. 929, 934, 26 P.3d 1267 (2001), abrogated on other
grounds by State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007). "A structural error is one
that is so pervasive it defies 'analysis by "harmless-error" standards.'" State v. Johnson,
310 Kan. 909, 913, 453 P.3d 281 (2019) (quoting Arizona v. Fulminante, 499 U.S. 279,
309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 [1991]). To date, the United States Supreme
Court has only identified a "'very limited class of cases'" involving structural errors,
including: (1) total deprivation of counsel; (2) lack of an impartial trial judge; (3) denial
of the right to self-representation at trial; (4) violation of the right to a public trial;
(5) erroneous reasonable-doubt instruction; and (6) unlawful exclusion of members of the
defendant's race from a grand jury. Neder, 527 U.S. at 8; see United States v. Marcus,
560 U.S. 258, 263, 130 S. Ct. 2159, 176 L. Ed. 2d 1012 (2010); Fulminante, 499 U.S. at
309-10; see also Johnson, 310 Kan. at 917 (declining to find structural error where judge
briefly fell asleep during a criminal jury trial).
Jackson contends omitting the mental state element from the instruction deprived
the jury of the opportunity to find him guilty beyond a reasonable doubt on Count 2, thus
violating his constitutional right to a jury trial and amounting to structural error. He also
asserts that this court cannot "step in and make the factual finding to save this conviction"
because "it is the jury's role to find each and every element in order to convict." As
support, he relies heavily on State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003), and other
authorities cited within that decision. But Brice is distinguishable because it involved a
specific objection to the disputed instruction, in particular the trial judge's instruction to
the jury that "great bodily harm" means "a through and through bullet wound." 276 Kan.
771. On appeal the Kansas Supreme Court held that instructing the jury in this way
infringed on the defendant's constitutional rights because the instruction "in effect
directed a verdict on an essential element of the aggravated battery charge." 276 Kan. at
771.
8
This case is more like Neder and Daniels because it involves the omission of an
essential element of a charged offense. But more to the point, Jackson points to no
authority recognizing that a claim like his presents a structural error. Failure to support a
point with pertinent authority or show why it is sound despite a lack of supporting
authority or in the face of contrary authority is akin to failing to brief the issue. State v.
Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019). And the Kansas Supreme Court has
repeatedly analyzed the omission of an essential element of an offense using the harmless
error standard, directly contradicting any assertion that the error is so pervasive as to defy
"'analysis by 'harmless-error' standards.'" Johnson, 310 Kan. at 913; see also State v.
Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017) (Kansas Court of Appeals duty
bound to follow Kansas Supreme Court precedent absent some indication of a departure
from previous position). As a result, we decline to review Jackson's claim for structural
error and instead use the harmless-error standard.
So returning to whether the instructional error was harmless, the evidence
supporting Jackson's guilt on Count 2 (commercial exploitation of a child—I.W.) was
uncontested and overwhelming. Jackson admitted on the stand repeatedly that he paid
I.W. to have sex with him, and his testimony was corroborated by the girls' testimony that
he gave I.W. money after they had sex. Jackson's own admission establishes that he was
aware of the nature of his conduct. See K.S.A. 2018 Supp. 21-5202(i) (defining
"'knowingly'"). Moreover, Jackson does not challenge his conviction in Count 1 for
aggravated indecent liberties with a child, which is the underlying sexual act supporting
his conviction on Count 2, and that charge required proof that he acted "knowingly,
intentionally, or recklessly." K.S.A. 2018 Supp. 21-5202; K.S.A. 2018 Supp. 21-
5506(b)(1), (c)(2)(A). We have no hesitation in concluding beyond a reasonable doubt
that the verdict would not have changed had the instruction contained the requirement
that Jackson acted knowingly, making that error harmless. Accordingly, Jackson's
conviction for commercial sexual exploitation of a child is affirmed.
9
II. JACKSON WAS NOT PREJUDICED BY THE ALTERNATE JUROR'S PRESENCE WHEN
THE JURY SELECTED THE FOREPERSON.
Jackson next argues—for the first time on appeal— that he is entitled to a new
trial because the district court inadvertently allowed the alternate juror to participate in
selecting the foreperson of the jury. He contends the alternate juror's participation
violated both his constitutional right and his statutory right to a jury trial under K.S.A.
2020 Supp. 22-3420(a), warranting a mistrial. Resolution of this issue presents a question
of law subject to unlimited review because it involves determining whether Jackson's
constitutional rights were violated. See State v Anderson, 294 Kan. 450, 464, 276 P.3d
200 (2012).
A. We elect to consider Jackson's constitutional claim.
Generally, Kansas courts do not consider constitutional issues raised for the first
time on appeal. There are exceptions to this rule, which include: (1) The newly asserted
theory involves only a question of law arising on proved or admitted facts and is finally
determinative of the case, (2) consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights, and (3) the district court was right for
the wrong reason. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). "But just
because an exception may permit review of an unpreserved issue, this alone does not
obligate an appellate court to exercise its discretion and review the issue." State v. Parry,
305 Kan. 1189, 1192, 390 P.3d 879 (2017). "The decision to review an unpreserved claim
under an exception is a prudential one. Even if an exception would support a decision to
review a new claim, this court has no obligation to do so." State v. Gray, 311 Kan. 164,
Syl. ¶ 1, 459 P.3d 165 (2020).
Jackson contends this court can consider his claim under two recognized
exceptions to the general rule that issues not raised below, including constitutional
10
grounds for reversal, cannot be raised on appeal for the first time. See State v. Daniel,
307 Kan. 428, 430, 410 P.3d 877 (2018); State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987(2014). He asserts consideration of this issue is necessary to serve the ends of justice or
prevent denial of his fundamental right to a jury trial, and that it presents only a question
of law on proven or admitted facts that is finally determinative of the case. See Johnson,
309 Kan. at 995 (recognizing these as exceptions).
Jackson is asserting, at a minimum, that the alternate juror's mere presence in the
jury room violated his constitutional right to a jury trial and prejudiced him, an issue this
court has reviewed for the first time on appeal in the past. See State v. Thurman, No.
97,450, 2008 WL 2891064, at *7 (Kan. App. 2008) (unpublished opinion) (finding no
reversible error when alternate jurors present during jury deliberations). We elect to
consider Jackson's claim.
B. Our standard of review is unlimited.
Because resolution of this issue involves determining whether Jackson's
constitutional rights were violated, our review is unlimited. See Anderson, 294 Kan. at
464. Likewise, the interpretation of a statute presents a question of law subject to
unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). And
finally, the party claiming an error occurred has the burden of designating a record that
affirmatively shows prejudicial error. Without such a record, an appellate court presumes
the action of the district court was proper. State v. Simmons, 307 Kan. 38, 43, 405 P.3d
1190 (2017).
11
C. The only Kansas appellate case to examine a similar issue was an unpublished
case from this court in 2008.
This court has addressed a similar—but not identical—issue once in Thurman,
2008 WL 2891064. In that case, the trial judge allowed two alternate jurors to be present
in the jury room but instructed them not to participate in the jury deliberations. On
appeal, the panel concluded the defendant showed no prejudice but noted "the better
practice would be to exclude [the alternate jurors]." 2008 WL 2891064, at *7. The panel
also found it significant that the defense counsel "actively participated in the discussion
related to the alternate jurors and ultimately agreed to the trial court's suggestion that they
be present in the jury room." 2008 WL 2891064, at *7. That said, other than Thurman, no
Kansas appellate decision has considered an alternate juror's presence in the jury room or
participation during the selection of the foreperson.
D. The statutory and constitutional provisions regarding alternate jurors is
examined.
The Sixth and Fourteenth Amendments to the United States Constitution—as well
as section 5 to the Kansas Constitution Bill of Rights—guarantee a criminal defendant
the fundamental right to a jury trial. State v. Redick, 307 Kan. 797, 803, 414 P.3d 1207(2018). In Kansas, K.S.A. 2018 Supp. 22-3412(c) authorizes a trial court to empanel
alternate jurors to replace a chosen juror, requiring:
"Such alternate jurors shall be seated near the other jurors, with equal power and facilities
for seeing and hearing the proceedings in the case, and they must attend at all times upon
the trial of the cause in company with the other jurors. They shall obey the orders of and
be bound by the admonition of the court upon each adjournment, but if the regular jurors
are ordered to be kept in custody during the trial of the cause, such alternate jurors also
shall be kept in confinement with the other jurors. Upon final submission of the case to
12
the jury, the alternate jurors may be discharged or they may be retained separately and
not discharged until the final decision of the jury."
Moreover, "[n]o person other than members of the jury shall be present in the jury
room during deliberations." K.S.A. 2018 Supp. 22-3420(a).
E. Federal and state caselaw regarding alternate jurors is examined.
Almost 20 years ago, the United States Supreme Court addressed whether an
alternate juror's presence in the jury room during deliberations violated the defendant's
substantial rights using the "plain error" rule set forth in the Federal Rules of Criminal
Procedure. United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 123 L. Ed. 2d 508(1993). Although the Supreme Court explicitly noted it was not reviewing the issue as a
Sixth Amendment or Due Process Clause violation, it held that resolution turned on
whether the trial court's error prejudiced the defendants and concluded the mere presence
of alternate jurors during jury deliberations is not inherently prejudicial. See 507 U.S. at
739-41. In reaching this conclusion, the Olano Court noted that in some cases "[i]n
theory, the presence of alternate jurors during jury deliberations might prejudice a
defendant in two different ways: either because alternates actually participated in the
deliberations, verbally or through 'body language'; or because the alternates' presence
exerted a 'chilling' effect on the regular jurors." 507 U.S. at 739.
Relying on this language, Jackson contends the Olano decision implicitly
recognized that an alternate juror's participation in jury deliberations leads to a
presumption of prejudice that requires reversal of his convictions. As support, he relies
on several state and federal court decisions holding that a defendant can establish
prejudice merely by showing that an alternate juror participated in deliberations. For
example, in Barnes v. Joyner, 751 F.3d 229, 246 (4th Cir. 2014), the Fourth Circuit
recognized that a rebuttable presumption of prejudice applied when the facts showed a
13
juror communicated with her pastor about the death penalty while serving on a capital
sentencing jury. See also Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 98
L. Ed. 654 (1954) (recognizing rebuttable presumption of prejudice upon showing
extraneous influence on the jury); United States v. Acevedo, 141 F.3d 1421, 1424 (11th
Cir. 1998) (assuming based on Olano that alternate jurors' participation in jury
deliberations, including electing alternate as foreperson, was a "prejudicial influence" but
ultimately concluding trial court cured the prejudice by dismissing alternates and issuing
clean-slate instruction). Likewise, in Manning v. Huffman, 269 F.3d 720, 726 (6th Cir.
2001), the Sixth Circuit concluded that "evidence that an alternate juror participated in
jury deliberations is sufficient to demonstrate prejudice." See also Stokes v. State, 379
Md. 618, 642, 843 A.2d 64 (2004) ("The presence of alternate jurors during deliberations
creates a presumption of prejudice that is effectively unrebuttable under most
circumstances.").
These cases are clearly distinguishable because they involved evidence that
external information directly influenced the jury's verdict. In contrast, the facts here
involved an alternate juror's participation in selecting the foreperson, which—as the
parties both point out—is generally not considered part of the deliberation process. See
State v. West, 274 Conn. 605, 651, 877 A.2d 787 (2005) (applying Olano and requiring a
showing of prejudice because selecting a foreperson is not part of deliberations); Bouey v.
State, 762 So. 2d 537, 540-41 (Fla. Dist. Ct. App. 2000) (harmless error analysis is
appropriate if the alternate juror is present only during the time the jury engages in
organizational activity such as taking breaks, making phone calls, or electing the
foreperson); Jacksonville Racing Ass'n, Inc. v. Harrison, 530 So. 2d 1001, 1004 (Fla.
Dist. Ct. App. 1988) (rejecting new trial argument because the evidence revealed "no
reasonable possibility that the alternate participated in any substantive deliberations").
We fully recognize that making an adequate inquiry into any prejudice suffered
when an alternate juror is allowed to retire to the jury room is difficult because the
14
inquiry involves an intrusion into the proceedings of the jury. But here no such intrusion
is required. The undisputed evidence in the record is that the alternate juror was in the
room for a couple of minutes and the only action that took place was selection of a
foreperson. Jackson does not claim that the alternate juror participated in deliberations.
We agree with our sister states who have directly considered this issue. Selecting a
foreperson is not a part of jury deliberations, and the participation of an alternate juror in
said selection is not presumptively prejudicial requiring the reversal of a conviction. And
there is no evidence to support a finding here that Jackson was prejudiced by this brief
interaction. The only case Jackson cites to the contrary, United States v. Beasley, 464
F.2d 468, 471 (10th Cir. 1972), was decided well before Olano and abrogated by it.
Accordingly, we find that the alternate juror's participation in the selection of a jury
foreperson does not warrant reversal of Jackson's convictions.
III. THE PROSECUTOR'S STATEMENTS IN CLOSING WERE NOT IMPROPER, AND EVEN IF
THEY WERE, THEY WERE HARMLESS.
Toward the end of his closing statement, Jackson, referring to one of the
aggravated indecent liberties with a child charges, argued as follows:
"[THE DEFENDANT:] Mr. Edwards said that the number three—at that time of
intercourse, [I.W.]—I'm just reading this in particular one—was 14 or 15 years old. The
State need not prove the defendant knew the child's age. And he said that that law was
there to prevent people from committing that crime and I disagree. That law is there to
prevent people from having the defense who may have gotten into a situation like I did.
That law is there to say, hey, no matter what you say, this is what the law says. You have
to follow the law. That's what that law is there for. And fortunately, there is a lot of
people who have made the same mistake that I made that are in this very county jail.
"MR. EDWARDS: I object to that. That's irrelevant and improper.
15
"THE COURT: Sustained. Please disregard that statement. We're here to talk
about you, Mr. Jackson.
"THE DEFENDANT: Yes. I just want you all to keep that in mind when you are
deliberating. Thank you.
"THE COURT: Counsel.
"MR. EDWARDS: I just ask you to keep in mind the story of woe is not a
defense. What he's essentially asking you to do is just to ignore the law because—well,
because he wants you to. You took an oath to uphold the law and I'm asking you to do
that."
Jackson argues the State's statement requires reversal for prosecutorial error for
misstating the law on jury nullification. The State responds that jury nullification is not a
valid defense, and that any error would be harmless because Jackson cannot show the
jury would have acquitted him on the charges, particularly since he admitted to the
offenses.
To determine whether prosecutorial error has occurred, we first look to whether
the prosecutor's comments fall outside the wide latitude afforded prosecutors. If they do,
we next determine whether the error prejudiced the defendant's constitutional due process
rights to a fair trial. Prosecutorial error is harmless if the State can demonstrate beyond a
reasonable doubt that the error did not affect the outcome of the trial considering the
entire record. In other words, it is harmless if there is no reasonable possibility that the
error contributed to the verdict. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060(2016).
16
A. The prosecutor's statement was not a misstatement of the law.
It is considered prosecutorial error if the prosecutor misstates the law. State v.
Ross, 310 Kan. 216, 221, 445 P.3d 726 (2019). We evaluate prosecutorial error using a
two-step analysis. We ask: (1) whether the complained-of conduct was outside the
considerable latitude given a prosecutor in discussing the evidence; and (2) whether the
remarks constitute plain error, that is, whether the statements prejudiced the defendant
and denied him or her a fair trial. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006).
Jackson contends the prosecutor misstated the law during closing arguments by
advising the jury that "the story of woe is not a defense" and reminding them of their oath
to uphold the law. According to Jackson, these comments were improper because they
eliminated "what amounted to his only defense," which is that the jury could have
acquitted him using its power of nullification.
As support, Jackson relies on several decisions discussing a jury's nullification
power. See State v. McClanahan, 212 Kan. 208, 213, 510 P.2d 153 (1973) (referring to
"the jury's raw physical power to disregard the law"). But as he recognizes, the Kansas
Supreme Court has long held that an instruction telling the jury it may nullify is legally
erroneous. 212 Kan. at 215-17; see also State v. Naputi, 293 Kan. 55, 66, 260 P.3d 86(2011) ("It is not the role of the jury to rewrite clearly intended legislation, nor is it the
role of the courts to instruct the jury that it may ignore the rule of law, no matter how
draconian it might be."). Although Jackson does not go as far as to suggest he has a
"right" to jury nullification, the Kansas Supreme Court recently declined to recognize
such a right. State v. Boothby, 310 Kan. 619, 631, 448 P.3d 416 (2019) (noting that past
decisions called the jury nullification a "'power'" and not a "'right'"). In a companion
decision issued the same day as Boothby, the court also held an instruction stating the
"'verdict must be founded entirely upon the evidence admitted and the law as given in
17
these instructions,'" is legally correct. State v. Toothman, 310 Kan. 542, 555, 448 P.3d
1039 (2019); Boothby, 310 Kan. at 631.
Jackson's argument is aligned with one raised in State v. Pruitt, 310 Kan. 952, 967,
453 P.3d 313 (2019). Pruitt claimed prosecutorial error when the prosecutor told the jury
it "'must'" convict if convinced beyond a reasonable doubt that the State had proved the
elements of the charged offense. After reviewing previous decisions rejecting arguments
that a jury should be instructed on the jury nullification power—including Boothby—the
Supreme Court found no error in the prosecutor's statement. In reaching that conclusion,
the court noted that "an instruction from the court is fundamentally different from a
prosecutor's closing argument" because the prosecutor merely "used the word 'must' to
summarize and emphasize the ways in which the State's evidence proved the elements of
the charged crime." 310 Kan. at 967.
A logical extension of these recent holdings would be that the prosecutor's
reminder to the jury of their oath to uphold the law does not constitute a misstatement of
law. The context of the prosecutor's statements shows they were in direct response to
Jackson's suggestion to the jury that it should acquit him because the statute for
aggravated indecent liberties with a child prevented him from arguing that he did not
know I.W.'s age. Reminding the jury to follow their sworn oath to uphold the law is akin
to instructing the jury that the verdict must be based on the evidence presented and the
law as instructed. Thus, it cannot reasonably be considered a misstatement of law.
B. Any error was harmless.
That said, even if we found that the prosecutor's statement to the jury that Jackson
could not rely on "woe" as a defense was a misstatement of the law on jury nullification
in light of the fact that a "story of woe" was Jackson's only stated defense at trial, his
claim still fails. Jackson must demonstrate prejudice. Jackson's testimony admitting that
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he had sex with I.W., a 15-year-old girl, independently supplied the evidence needed to
sustain his conviction for aggravated indecent liberties with a child—I.W. Moreover, as
the State points out, the jury acquitted Jackson of commercial sexual exploitation of a
child—M.C., which shows that it considered his version of the events in its deliberations
since he denied giving M.C. money but admitted to some sexual contact with her.
In sum, we find that the prosecutor's statements do not warrant reversal of
Jackson's convictions.
IV. CUMULATIVE ERROR DOES NOT WARRANT A NEW TRIAL.
In his final argument, Jackson contends the cumulative effect of the above trial
errors denied him his constitutional right to a fair trial and warrants reversal of his
convictions. The State responds generally that there are no errors to consider under the
cumulative error analysis and, alternatively, that Jackson's guilt was established by
overwhelming evidence.
Cumulative trial errors, when considered together, may require reversal of the
defendant's conviction when the totality of the circumstances establish that the defendant
was substantially prejudiced by the errors and was denied a fair trial. State v. Hirsh, 310
Kan. 321, 345, 446 P.3d 472 (2019). In assessing the cumulative effect of errors during
the trial, appellate courts examine the errors in the context of the entire record,
considering how the trial judge dealt with the errors as they arose; the nature and number
of errors and their interrelationship, if any; and the overall strength of the evidence. 310
Kan. at 345-46. However, "'[n]o prejudicial error may be found under the cumulative
error doctrine if the evidence against the defendant is overwhelming.'" State v. James,
309 Kan. 1280, 1311, 443 P.3d 1063 (2019).
19
If any of the errors being aggregated are constitutional in nature, their cumulative
effect must be harmless beyond a reasonable doubt. State v. Robinson, 306 Kan. 1012,
1034, 399 P.3d 194 (2017).
The State asserts Jackson's claims of error each "failed on their own merits," and
thus cumulative error does not apply. See State v. Lemmie, 311 Kan. 439, 455, 462 P.3d
161 (2020) (when no errors exist, cumulative error doctrine cannot apply); State v.
Ballou, 310 Kan. 591, 617, 448 P.3d 479 (2019) (single error cannot support reversal for
cumulative error). Contrary to the State's assertion, however, Jackson managed to
establish some form of error on two of the three issues raised, but neither of those errors
were reversible because they were harmless.
For example, the State conceded on the first issue that instructing the jury on the
culpable mental state element for Count 2 (commercial sexual exploitation of a child—
I.W.) was legally appropriate but as discussed, that error was harmless because of the
overwhelming evidence of Jackson's guilt. Likewise, the alternate juror's brief presence in
the jury room for the election of the presiding juror at most created a rebuttable
presumption of prejudice. But the record shows that error was also harmless since the
alternate juror was promptly removed and did not participate in substantive deliberations.
Both errors were harmless as well because of the overwhelming evidence of his guilt, as
established by his own testimony.
Although each error was not so egregious to warrant reversal on its own, the
cumulative error doctrine seeks to address the collective effect of these errors. According
to Jackson, he was denied the right to a fair trial because the instructional error reduced
the State's burden of proof while the prosecutor's improper statements about jury
nullification simultaneously removed his only available defense. As for his second claim,
Jackson also asserts his case "was not tried by an intact jury of twelve," which combined
with the other errors to "push" the jury to convict him.
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But these generalized characterizations of Jackson's claims are not entirely
accurate and do not establish that the district court or the prosecutor violated his right to a
fair trial. To start, we have found that the prosecutor did not misstate the law on jury
nullification, so he cannot rely on that alleged error. In addition, Jackson only directed his
jury instruction challenge at Count 2 (commercial sexual exploitation of a child—I.W.),
and he was acquitted of the other charge for commercial sexual exploitation of a child—
M.C, so he fails to show why that error should be compounded to his other two
convictions. See State v. Sims, 308 Kan. 1488, 1507, 431 P.3d 288 (2018), cert. denied
140 S. Ct. 126 (2019) ("Taken together, these errors in no way compounded one another;
they were discrete."). Jackson also fails to explain how the alternate juror's brief presence
in the jury room while selecting the presiding juror somehow tainted the jury's
substantive deliberations given the instructional error.
The evidence of Jackson's guilt here was overwhelming. By his own admission,
Jackson had sexual contact with both I.W. and M.C., who were 15 years old at the time,
and he paid I.W. a sum of money in exchange. The girls' testimony corroborated
Jackson's admission of guilt. As a result, we find that the cumulative effect of the errors
raised did not substantially prejudice Jackson nor deny him a fair trial.
Affirmed.
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