State v. Davis

339 P.3d 412 (Table)

STATE of Kansas, Appellee

v.Donald L. DAVIS, Appellant.

109,871.

Court of Appeals of Kansas.

Dec. 5, 2014.

Review Denied August 20, 2015.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., PIERRON and POWELL, JJ.

MEMORANDUM OPINION

POWELL, J.

Donald Davis appeals from his convictions of three counts of statutory rape and three counts of aggravated human trafficking. Davis claims (1) the district court improperly instructed the jury on an essential element by stating K.P., the victim, was 13 years old; (2) the district court admitted hearsay testimony regarding K.P .'s age; (3) the district court erred by excluding certain evidence; and (4) the aggravated human trafficking statute is unconstitutionally overbroad and vague. Because we find no reversible error, we affirm Davis' convictions.

Facts

K.P. met a girl nicknamed Mookie while they were both staying at the Wichita Children's Home. After leaving the children's home in December 2010, instead of going home with her stepmother, K.P. ran away to live with Mookie. She spent several weeks at Mookie's house, eventually owing Mookie money stemming from prostitution. Because K.P. needed money, Mookie provided her with Davis' phone number, and K.P. called Davis to arrange for him to pick her up. About a week before Christmas Day, Davis picked up K.P. in his Escalade at a local gas station. K.P. testified she was 13 years old in December 2010 but admitted she lied to Davis about her age. Davis was in his 40s.

K.P. testified that on the day Davis picked her up, he took her to an apartment where they engaged in sexual intercourse. K.P. stated Davis wanted to “try out the merchandise.” K.P. and Mookie then stayed with Davis at his house for several days. Over the course of the next week, K.P. claimed she had sex with Davis two other times at his house. Also during that week, Davis set up three appointments for K.P. with a man named Mike. Each time, Davis drove K.P. to Mike's home where she had sex with him. Mike was in his 40s or 50s.

K.P. explained that Mookie was in Davis' Escalade the first time he took her to Mike's house. Davis told her what to charge Mike, and K.P. collected the payment and gave the money to Davis when he picked her up from Mike's house. K.P. testified that after each time she had sex with Mike, she gave the money to Davis, who then returned half of the money to her. K.P. then gave her share of the money to Mookie.

At some point, K.P. told Davis she did not want to “be a hoe” anymore. K.P. was upset and crying, so Davis took her to his home where they watched television. K.P. testified they went to Davis' house so Mookie would not know that K.P. was not at a scheduled prostitution engagement. K.P. then called her friend Kelli to ask if she could stay at her house. Kelli's mother talked to Davis who, pretending to be K.P.'s uncle, gave K.P. permission to be at Kelli's house. Davis took K.P. to Kelli's house.

At Kelli's house, K.P. told Kelli she had been working as an escort for a man named “Bay-bay.” It is unclear exactly how long K .P. stayed at Kelli's house, but Kelli's mother kicked K.P. out of their house around 4:30 a.m. on Christmas Eve. As a result, K.P. called Davis to pick her up. Later that day, Davis took K.P. back to Kelli's house to get some clothes she had left. When K.P. returned, Kelli took down the license plate number of the Escalade, which her mother then gave to the police. The police traced the license plate number to Davis' house, where they found K.P. around 10:30 p.m. An officer transported K.P. to the Exploited and Missing Children Unit (EMCU). Police searched the Escalade and found a packaged condom and tennis shoes in a shopping bag from the store Journey. K.P. testified the shoes in the bag were hers.

Davis agreed to voluntarily go to EMCU. Officer Michael Nagy interviewed Davis, who waived his rights and agreed to talk with Nagy. Davis admitted he tried to have sex with K.P. once but claimed he was unable to penetrate her vagina. He also admitted taking K.P. to Mike's house three times and telling her what to charge. He said he then split Mike's payment 50/50 with K.P.

Medical examiners took DNA swabs from K.P. and determined Davis was excluded as a contributor to the DNA found in her vagina but confirmed the DNA was consistent with Mike's DNA.

A jury convicted Davis of three counts of aggravated human trafficking and three counts of rape. The district court sentenced Davis to a controlling hard 25 years in prison.

Davis timely appeals.

Did the District Court Improperly Instruct the Jury That an Essential Element of the Crimes Was Fulfilled?

Davis' first claim of error is that the district court improperly instructed the jury on an essential element of aggravated human trafficking by inserting the language “to wit: KNP, age 13”, which Davis contends affirmatively directed the jury on an element of the crime in violation of his right to a jury trial under the Sixth Amendment to the United States Constitution and § 5 of the Kansas Constitution Bill of Rights. The State argues Davis is mischaracterizing the instructions, as the language “to wit: KNP, age 13” did not instruct the jury that K.P. was 13 years old but merely reflected that the State alleged K.P. was 13 years old.

The jury instructions for the three counts of aggravated human trafficking each stated:

“To establish this charge, each of the following claims must be proved:

“1. That the defendant transported a person under 18 years of age, to wit: K.N.P., age 13, knowing that K.N.P., with or without force, threat or coercion would be used to engage in sexual gratification of another....” (Emphasis added.)

Davis' requested instruction for aggravated human trafficking did not include the language “to wit: K.N.P., age 13.” At the instruction conference, Davis' counsel objected to the court's final jury instructions anywhere the court's instructions differed from Davis' proposed instructions. Davis' counsel explained, “[We] ask that our proposed instructions be given, which I won't belabor the record. Our authority for each of those instructions is at the bottom. And I would simply rest with that, your Honor.” The district court overruled the objections.

The standard under which we should review Davis' contention of error is in dispute because there is a question as to whether Davis' trial counsel properly preserved the issue below. In order to preserve a challenge to a particular instruction on appeal, a party is required to object before the jury to the giving or the failure to give a particular jury instruction, “stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction ... is clearly erroneous.” K.S.A. 22–3414(3). Davis argues our standard of review is unlimited because counsel properly objected. If so, our duty then would be to determine as a matter of law whether the instruction fairly and accurately stated the applicable law. See State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). If the instruction failed in this regard, then the State would have the burden to show that the error did not affect the outcome. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).

However, the State claims Davis failed to properly object before the trial court because defense counsel's objection was too broad, the objection did not identify the specific instructions to which he was objecting, and defense counsel failed to present specific arguments as to particular portions of an instruction.

“When a party fails to object to or request a jury instruction at trial, review on appeal is limited to determining whether the instruction was clearly erroneous. K.S.A. 22–3414(3) ; see State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). The application of this standard consists of two parts. ‘First, “the reviewing court must ... determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ “ 296 Kan. at 1121 (quoting State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 [2012] ).

“ ‘If error is found, then the second part is considered, i.e ., the clearly erroneous analysis moves to a reversibility inquiry and “the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.’ “ 296 Kan. at 1121 (quoting Williams, 295 Kan. 506, Syl. ¶ 5 ).” State v. Brown, 300 Kan. ––––, ––––, 331 P.3d 781, 792 (2014).

The State relies on State v. Breedlove, 295 Kan. 481, 286 P.3d 1123 (2012), for its contention that Davis' trial counsel did not properly object below because the objection lacked sufficient specificity. In Breedlove, defense counsel lodged a vague objection to an instruction by saying, “Well, I consistently ask the Court to not include the Allen instruction which is in instruction 12.” 295 Kan. at 497. The Breedlove court found defense counsel's objection was not specific enough and applied the clearly erroneous standard of review. 295 Kan. at 497.

In this case, defense counsel's objection was even less specific than in Breedlove; counsel merely objected to any instruction which differed from defense counsel's proposed instructions. Accordingly, we find Davis' trial counsel failed to properly object below, and we therefore apply the clearly erroneous standard of review.

“The Sixth Amendment to the United States Constitution provides: ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial

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