State v. Spackman

497 P.3d 574 (Table)

STATE of Kansas, Appellee,

v.Joseph Douglas SPACKMAN, Appellant.

No. 122,021

Court of Appeals of Kansas.

Opinion filed October 22, 2021.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Atcheson, P.J., Hill and Cline, JJ.

MEMORANDUM OPINION

Per Curiam:

A jury in Johnson County District Court found Defendant Joseph Douglas Spackman guilty of six felony sex crimes against the older daughter of his then-wife and one felony sex crime against the younger daughter. Spackman has challenged the district court proceedings and the resulting convictions on an array of grounds. We find no bases warranting relief and, therefore, affirm the convictions and resulting sentences.

FACTUAL AND PROCEDURAL HISTORY

Given the issues on appeal, we need not set out the details of the sexual abuse. Spackman does not dispute the sufficiency of the trial evidence—principally the testimony of the victims—to support the elements of the charged crimes. The jury believed the accounts of L.S., the older victim, and M.S., the younger victim, over Spackman's testimony denying any wrongdoing. We do, however, offer an overview of the development of the case against Spackman.

L.S., who was born in 2000, initially accused Spackman of touching her twice in inappropriately sexual ways in March 2012. L.S. reported the incidents, both of which happened around spring break, to school employees several days later. Although law enforcement officers and a caseworker from the Department for Children and Families investigated L.S.'s accusation, no action was taken against Spackman. At the time, E.S., the children's mother, suggested L.S. made up the claims and described her daughter as having been otherwise untruthful and a disciplinary problem. E.S. and Spackman had been dating for several years and were then recently married.

In February 2016, M.S., who was born in 2005, told L.S. that Spackman had touched her inappropriately. L.S. immediately had M.S. repeat what she had said in a video recording on a laptop. The girls, who were visibly upset, played the video for their mother. E.S. packed some clothing and other things; she and the children left the house and stayed with a friend. The friend recommended that E.S. take M.S. to the hospital. E.S. did so.

A specially trained nurse conducted a forensic sexual assault examination of M.S. And hospital personnel contacted the Overland Park Police Department. Officers with the department began an investigation. M.S. recounted how Spackman assaulted her. During the investigation, L.S. reported that Spackman had continued to sexually abuse her after the 2012 incidents. The forensic examination of M.S. yielded DNA evidence consistent with Spackman, such that 1 in about 750 randomly selected Caucasian or Hispanic males would match the sample.

The State proceeded to trial against Spackman in January 2019 on one count of aggravated indecent liberties with a child involving M.S. and four counts of aggravated indecent liberties with a child, one count of statutory rape, and one count of criminal sodomy involving L.S. As we indicated, L.S. and M.S. testified during the trial, along with other prosecution witnesses including the nurse and the DNA analyst. Spackman testified in his own defense and denied having any inappropriate physical contact with either L.S. or M.S. He suggested L.S. disliked him and enlisted M.S. to falsely accuse him of sexually abusing her. He testified L.S. had admitted to him that she lied in 2012 when she accused him. Spackman also told the jurors his DNA could have been transferred to M.S. if they had inadvertently used the same bath towel.

The jury convicted Spackman as charged. At a later hearing, the district court sentenced Spackman to a term life in prison with parole eligibility after 25 years for each of the off-grid convictions to be served concurrently but consecutive to terms of years for the guidelines convictions. The composite sentence yielded a controlling term of incarceration of life plus 110 months with lifetime parole should Spackman be conditionally released from prison. Spackman has appealed.

LEGAL ANALYSIS

Spackman raises multiple issues on appeal: (1) The crimes of conviction unconstitutionally impose a form of strict liability; (2) L.S.'s testimony was so nonspecific the jurors could not have reached a constitutionally permissible unanimous verdict; (3) the Kansas rape shield law violates his due process rights; (4) the prosecutor made improper statements during jury selection and in closing argument depriving him of a fair trial; and (5) the cumulative effect of the trial errors likewise precluded a fair trial. We take those points up in order, adding facts as necessary.

Strict Liability

Spackman contends the crime of rape, as codified in K.S.A. 2020 Supp. 21-5503, violates the Kansas Constitution Bill of Rights § 1 and § 5 because it imposes a form of strict liability if the victim is under 14 years of age. He then invites us to find the same constitutional defect undermines K.S.A. 2020 Supp. 21-5504, criminalizing sodomy, and K.S.A. 2020 Supp. 21-5506, criminalizing indecent liberties with a child, because those crimes also treat the victim's age as an element of some forms of the offenses. We find the arguments unpersuasive. Spackman did not raise these constitutional arguments in the district court, and the parties spar over whether we should consider them. We assume they have been properly preserved and presented.

Under K.S.A. 2020 Supp. 21-5503(a)(3), an individual commits rape by having sexual intercourse with a child under 14 years of age. The individual need not know the child's age, and the lack of knowledge is not a defense. See K.S.A. 2020 Supp. 21-5204(b). Spackman says that form of the crime, commonly known as statutory rape, imposes a species of strict liability that curtails or eliminates bad intent or a mens rea. For purposes of this appeal, we do not quibble with the characterization of statutory rape as a strict liability crime. See State v. Dinkel , 314 Kan. ––––, 2021 WL 4343322, at *9 (No. 113,705, filed September 24, 2021) ("[T]here is no mental culpability requirement for rape of a child under 14."); cf. State v. Thomas , 313 Kan. 660, 662, 488 P.3d 517 (2021) (court assumes rape to be strict liability crime in rejecting defendant's due process claim K.S.A. 2020 Supp. 21-5204 impermissibly dispenses with requirement defendants know or have reason to know victims have not consented).

From that premise, Spackman submits statutory rape violates the right to jury trial preserved in § 5. Section 5 of the Kansas Constitution Bill of Rights states: "The right of trial by jury shall be inviolate." And the Kansas Supreme Court has construed the language as retaining "the jury trial right as it historically existed at common law when our state's Constitution came into existence." State v. Albano , 313 Kan. 638, Syl. ¶ 1, 487 P.3d 750 (2021). Spackman posits that strict liability crimes were unknown at common law. In other words, according to Spackman, common-law crimes invariably consisted of a requisite bad act (the actus reus) and a requisite bad intent (the mens rea). We aren't disposed to accept that premise. But even if it were true, it proves too little here.

First, as the court recognized in Albano , what's protected in § 5 is the division of decision-making between a jury and the district court. In a criminal case, the jury is constitutionally mandated to decide the facts bearing on guilt or innocence based on the trial evidence. The district court, then, determines matters of law and imposes an appropriate punishment upon a guilty verdict. 313 Kan. at 647-48, 652. A jury's fact finding necessarily corresponds to the elements of a given crime. What § 5 protects is the fact-finding function itself, not the crime-specific elements to be found. Spackman's proposition rests on a petrification of the substantive criminal law as it was in 1859 when the Kansas Constitution, including § 5, was ratified. Section 5 did no such thing, as the discussion in Albano confirms.

Moreover, Spackman's argument falters because Kansas had supplanted common-law crimes with a comprehensive criminal code before the Kansas Constitution was drafted and ratified. See Kan. Terr. L. 1859, ch. 28; Kan. Terr. L. 1855, ch. 48. The legislative enactment of a criminal code supersedes common-law crimes. See State v. Sexton , 232 Kan. 539, Syl. ¶ 1, 657 P.2d 43 (1983) ; State v. Young , 55 Kan. 349, 356, 40 P. 659 (1895). So the right to jury trial did not encompass common-law crimes at the time of ratification. Rather, defendants were entitled to have juries determine their guilt or innocence based on crimes legislatively codified in the territorial laws.

In 1859, the territorial criminal code included statutory rape, defined as "carnally and unlawfully knowing any female child under the age of ten years." Kan. Terr. L. 1859, ch. 28, § 26. When the framers drafted § 5, Kansas recognized statutory rape as curtailing the required mens rea based on the victim's young age in a way similar to Spackman's characterization of rape under K.S.A. 2020 Supp. 21-5503(a)(3) as a strict liability crime. See In re Lloyd , 51 Kan. 501, 502-03, 33 P. 307 (1893) (recognizing underage victim's consent did not furnish defense negating criminality of act of sexual intercourse under statute using same language as territorial proscription of statutory rape). In short, there was no extant common-law offense governing sexual intercourse with children below a specified age when the Kansas Constitution was drafted and ratified, so § 5 would not have preserved some right to jury trial for that crime to the exclusion of a prosecution for violating the statutory crime already enacted in the territorial laws. Kan. Const. Schedule § 4 (territorial laws...