The opinion of the court was delivered by BEIER, J.:
Defendant Stacy Robert Newcomb appeals his convictions on one count of rape and one count of aggravated indecent liberties for his conduct with his third-grade stepdaughter, as well as his two consecutive Jessica's Law hard 25 life sentences.
Newcomb argues: (1) Rape is an alternative means crime, and the State's proof of at least one of the means on which the jury was instructed was insufficient; (2) aggravated indecent liberties is an alternative means crime, and the State's proof of at least one of the means on which the jury was instructed was insufficient; (3) his Jessica's Law hard 25 life sentence for rape is disproportional under § 9 of the Bill of Rights of the Kansas Constitution; and (4) his Jessica's Law hard 25 life sentence for aggravated indecent liberties is disproportional under § 9.
We hold that none of Newcomb's arguments has merit, and we affirm his convictions and sentences.
Newcomb's 8-year-old stepdaughter, K.S., told her school friends that Newcomb had been touching her private parts and having sex with her. A mother of one of the friends learned of the allegation and called the police. After an investigation, the State charged Newcomb with two counts of aggravated indecent liberties with a child.
During Newcomb's preliminary hearing, the State presented evidence that Newcomb had penetrated K.S.'s vagina with his penis. Then the court, on its own motion, amended the first count to charge rape rather than aggravated indecent liberties.
At trial, K.S. testified that Newcomb touched her inappropriately, inserted his "wiener" into her "front butt," and fondled her in the bathtub and while they watched "inappropriate" movies. K.S. also testified that Newcomb told her not to tell anyone about the abuse.
Newcomb testified in his own defense and denied all of the allegations. After the jury found Newcomb guilty on both counts and before sentencing, Newcomb filed a motion challenging the constitutionality of Jessica's Law. The district court judge made factual findings under the three-part test enunciated in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), and determined that Jessica's Law was constitutional.
Newcomb's first argument raises an issue of statutory interpretation. "Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal." State v. Brown, 295 Kan. 181, 193-94, 284 P.3d 977 (2012).
A criminal defendant has a statutory right to a unanimous jury verdict. See K.S.A. 22-3421; State v. Rojas-Marceleno, 295 Kan. 525, Syl. ¶ 13, 285 P.3d 361 (2012); State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). In State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), this court explained:
"Because jury unanimity is not required as to the means by which an alternative means crime is committed, unanimity instructions are not required in alternative means cases." Rojas-Marceleno, 295 Kan. at 544, 285 P.3d 361. Nevertheless, the State must meet a "super-sufficiency of the evidence" requirement, i.e., present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. Rojas-Marceleno, 295 Kan. at 544, 285 P.3d 361. If the State fails to present sufficient evidence to support each means, reversal is required. Rojas-Marceleno, 295 Kan. at 544, 285 P.3d 361.
"Ordinarily, the first step in analyzing an alternative means case is to determine whether the case truly presents an alternative means issue." Rojas-Marceleno, 295 Kan. at 544, 285 P.3d 361. Not all statutory alternatives are alternative means. See Rojas-Marceleno, 295 Kan. at 544-45, 285 P.3d 361; Brown, 295 Kan. at 193, 284 P.3d 977 ("Identifying an alternative means statute is more complicated than spotting the word `or.'"). "`The mere use of a disjunctive in a statute does not an alternative means crime make.'" Brown, 295 Kan. at 193, 284 P.3d 977 (quoting State v. Peterson, 168 Wn.2d 763, 770, 230 P.3d 588 [2010]).
K.S.A. 21-3502(a)(2) provides that "[r]ape is ... sexual intercourse with a child who is under 14 years of age." Sexual intercourse is defined under K.S.A. 21-3501(1) as "any penetration of the female sex organ by a finger, the male sex organ or any object." Newcomb argues that K.S.A. 21-3501(1) sets out three distinct ways of committing the crime of rape: penetrating a female victim's sex organ with (1) a finger, (2) the male sex organ, or (3) any object.
Newcomb argues that his conviction must be reversed because the State did not present any evidence that he penetrated K.S.'s vagina with his finger or any object that is neither his finger nor his penis.
This court rejected the same argument in State v. Britt, 295 Kan. 1018, 1027, 287 P.3d 905 (2012), where we said:
Britt controls here. Newcomb is not entitled to reversal of his rape conviction, because rape is not an alternative means crime.
Under K.S.A. 2010 Supp. 21-3504(a)(3)(A), aggravated indecent liberties with a child is defined as "[a]ny lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both."
Newcomb argues this statute required the State to present evidence that he acted with intent to arouse or satisfy both his sexual desires and K.S.'s sexual desires. Because the State did not prove that he acted with the intent to arouse or satisfy K.S.'s sexual desires, Newcomb contends, his conviction must be reversed.
Again, we have rejected Newcomb's argument. See Britt, 295 Kan. at 1026, 287 P.3d 905; State v. Brown, 295 Kan. at 202, 284 P.3d 977.
Newcomb is not entitled to reversal of his aggravated indecent liberties conviction. Aggravated indecent liberties is not an alternative means crime.
When considering a § 9 case-specific proportionality challenge to a sentence, a district judge must make factual findings and draw conclusions of law. State v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012) (citing State v. Ortega-Cadelan, 287 Kan. 157, 160-161, 194 P.3d 1195 [2008]). "These inquiries invoke a bifurcated standard of review: without reweighing the evidence, the appellate court reviews the factual underpinnings of the district court's findings under a substantial competent evidence standard, and the district court's ultimate legal conclusion drawn from those facts is reviewed de novo." Woodard, 294 Kan. at 720, 280 P.3d 203.
"Under § 9 of the Kansas Constitution Bill of Rights, a punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." State v. Gomez, 290 Kan. 858, Syl. ¶ 9, 235 P.3d 1203 (2010). Whether a sentence is "cruel or unusual" under § 9 because of its length is controlled by a three-part test, first outlined in State v. Freeman, 223 Kan. at 367, 574 P.2d 950. This three-part test weighs the following:
No single factor under the Freeman test controls the outcome. State v. Berriozabal, 291 Kan. 568, 591, 243 P.3d 352 (2010); State v. Mondragon, 289 Kan. 1158, 1163, 220 P.3d 369 (2009). "[C]onsideration should be given to each prong of the test." Ortega-Cadelan, 287 Kan. at 161, 194 P.3d 1195. Still, in some cases, one factor may weigh so heavily that it directs the final conclusion. 287 Kan. at 161, 194 P.3d 1195.
Here, under the first prong of the Freeman test, the district judge found that Newcomb was convicted of one count of rape and one count of aggravated indecent liberties with a child; the victim was his 8-year-old stepdaughter; Newcomb committed numerous sexual acts against the victim over a 4-month period; Newcomb had a prior California conviction for touching an 11-year-old girl's genitalia; K.S. was "placed in an atmosphere of fear in which she was forced to comply with Newcomb's criminal wishes"; Newcomb's crimes were ones of "extreme sexual violence," as defined by K.S.A. 21-4716(c)(2)(F)(i)(c); and Newcomb was the sole culpable person in the commission of the crimes. The district judge also stated that the penological purpose of Jessica's Law to protect society from sexual predators would be served in this case.
Newcomb does not make much of an issue over these findings on appeal, focusing on
We have previously rejected this line of argument, see State v. Seward, ___ Kan. ___, 297 P.3d 272 (2013), (this day filed), and we do so again here. Rape is among the crimes defined as sexually violent under K.S.A. 22-3717(d)(2)(A), and the rape of a child under 14 is a crime of "extreme sexual violence" under K.S.A. 21-4716(c)(2)(F)(i)(c). That a sexually violent crime could have been committed more violently is legally insignificant, and the district judge's factual findings are supported by substantial competent evidence in the record. The first prong of the Freeman test does not weigh in Newcomb's favor on the rape count.
Under the second Freeman prong, the court compares Newcomb's sentence for rape with the penalties imposed for "more serious crimes" in Kansas. See Freeman, 223 Kan. at 367, 574 P.2d 950.
Newcomb argues that he "would have been `better off,'" from a sentencing perspective, "had he murdered K.S." This court addressed an identical argument in Woodard in the context of aggravated indecent liberties with a child:
We concluded in Woodard that the penalty for aggravated indecent liberties with a child was not disproportionately harsh when compared with the punishments imposed for more serious offenses in Kansas. Woodard, 294 Kan. at 724, 280 P.3d 203. We also have stated today in Seward that rape is undeniably a more invasive and serious crime than aggravated indecent liberties, and it thus follows from the decision in Woodard that the penalty for rape under Jessica's Law is not disproportionately harsh when compared with Kansas sentences for homicide offenses. See Seward, ___ Kan. at ___, 297 P.3d 272; Britt, 295 Kan. at 1034-35, 287 P.3d 905. This holding from Seward controls here.
Also on the second Freeman prong, Newcomb asks us to consider a 2008 Kansas Sentencing Commission Proportionality Subcommittee's Report on Proposed Improvements and Modifications to Kansas Sentencing Laws. As explained in Seward, in which the defendant cited two such reports, this argument is unpersuasive. Seward, ___ Kan. at ___, 297 P.3d 272.
The second prong of the Freeman analysis does not favor Newcomb's argument that his Jessica's Law sentence for rape is unconstitutional under § 9.
The third prong of Freeman requires comparison of the penalty for rape under Jessica's Law and the penalties for the "same offense" in other jurisdictions. Freeman,
Because none of the Freeman factors weighs in Newcomb's favor, we hold that the hard 25 life sentence he received for rape of his stepdaughter is not disproportional under § 9 of the Kansas Constitution Bill of Rights.
All of our analysis on the first Freeman prong for Newcomb's Jessica's Law sentence for rape is equally applicable to his Jessica's Law sentence for aggravated indecent liberties. The first prong weighs against him.
Likewise, to the extent Newcomb's arguments on the second prong of the Freeman test for his aggravated indecent liberties conviction mirror those for his rape conviction, we are unpersuaded.
Newcomb does advance an additional argument, however, that we must address: He asserts that his aggravated indecent liberties sentence is suspect under the second Freeman prong because it is identical to his sentence for rape. Newcomb is correct that rape is a more serious, more invasive crime than aggravated indecent liberties. See Seward, ___ Kan. at ___, 297 P.3d 272; Britt, 295 Kan. at 1026, 287 P.3d 905. But that is not the only requirement before Newcomb can claim § 9 protection under the second Freeman prong. The more serious crime to which his crime of conviction is compared must be punished "less severely," not exactly the same, as it was here. See Freeman, 223 Kan. at 367, 574 P.2d 950. Accordingly, Newcomb's argument fails.
On the third Freeman prong, Newcomb distinguishes between punishments for crimes involving "mere fondling," such as aggravated indecent liberties, from punishments for crimes involving "acts of penetration," such as rape or anal sodomy. Newcomb contends that Kansas' Jessica's Law statute is "the second harshest in the country as applied to mere fondling or touching, and [that Kansas is] one of only two states in the nation imposing a life sentence without the possibility of parole ... in the absence of any aggravating factors."
In its brief, the State does not respond directly to Newcomb's specific contentions and citations about aggravated indecent liberties. It instead generally argues the incapacitation purpose of the adoption of Jessica's Law penalties nationwide. Its attachment of a National Conference of State Legislatures' table provides little detail about the exact offenses in other states that would be considered the "same," as Freeman requires. See Seward, ___ Kan. at ___, 297 P.3d 272 (discussing "same" versus "similar"). And its citation to an Internet website appears to be out of date and inaccessible. The State reasons as follows:
The State's casual approach compels us to accept, for purposes of argument in this case, Newcomb's assertion that Kansas has one of the harshest penalties in the nation for indecent liberties committed by an adult against a child younger than 14, which means that the third prong of the Freeman test favors his § 9 challenge.
However, Newcomb's persuasive force on the third prong does not counterbalance the first and second prongs. Among other things, Newcomb's previous out-of-state conviction
Each of defendant Stacy Robert Newcomb's four claims on this appeal lacks merit. Our statutes prohibiting rape and aggravated indecent liberties do not create alternative means crimes. And his sentences for those crimes are not disproportional under § 9 of the Kansas Constitution Bill of Rights.
The judgment of the district court is affirmed.
