No. 126,406
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JEFFERY A. SANDERS,
Appellant.
SYLLABUS BY THE COURT
1.
Whether a person is considered a child in Kansas is statutorily different than
whether one is considered of sufficient age to consent to sexual intercourse. The Kansas
Legislature has the power to determine the age at which being a minor ends, and K.S.A.
38-101 identifies it as 18 years of age.
2.
In Kansas, under K.S.A. 21-5507(a)(1)(A), persons 16 years of age or older can
lawfully consent to sexual intercourse.
3.
Under the facts of this case, we reject the defendant's claim that making and
distributing child pornography is a constitutionally protected activity simply because the
minor could lawfully consent to sexual activity.
1
4.
We adopt the reasoning in State v. Senters, 270 Neb. 19, 26-27,
699 N.W.2d 810
(2005), that the State has a legitimate reason to ban the creation of child pornography
because it is often associated with child abuse and exploitation, resulting in physical and
psychological harm to the child, and due to the potential for reputational harm.
5.
Aggravated intimidation of a witness, K.S.A. 21-5909(b), is not a separate offense
controlled by K.S.A. 21-5301 or subject to the reduced penalty provisions of that statute.
Because the aggravated intimidation of a witness statute includes attempt language, the
offense is complete even when a defendant attempts to prevent or dissuade a witness. So
the identical offense doctrine does not apply to such a conviction.
6.
Under K.S.A. 20-370(a), a defendant convicted of a crime against a minor victim
must pay a $400 assessment fee for each crime committed against a minor, not each
complaint or information.
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Submitted without oral argument.
Opinion filed January 10, 2025. Affirmed in part, vacated in part, and remanded with directions.
Sam Schirer, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., GARDNER and CLINE, JJ.
ARNOLD-BURGER, C.J.: A jury convicted Jeffery A. Sanders of multiple counts of
sexual exploitation of a child for enticing 16-year-old Jane Doe (a pseudonym for the
2
victim in the case) to send him nude pictures and for possessing a video of one of their
sexual encounters. He was also convicted of one count of aggravated intimidation of a
witness or victim for attempting to discourage Doe from revealing their relationship to
law enforcement.
On appeal, Sanders raises several challenges to his convictions and resulting
sentence, arguing: (1) the sexual exploitation of a child statute is unconstitutional as
applied because it improperly criminalizes private, consensual sexual conduct; (2) the
identical offense doctrine applies to his aggravated intimidation of a witness or victim
charge, requiring resentencing; (3) the State failed to allege and prove his age to support
imposing lifetime postrelease supervision; (4) lifetime postrelease supervision is cruel
and unusual punishment; (5) the district court erred in requiring him to pay four
Children's Advocacy Center fees instead of a single fee; and (6) the journal entry of
sentencing must be corrected because the court ordered a lower witness mileage fee at
sentencing than the amount shown on the journal entry. The State concedes the journal
entry is incorrect and must be corrected. As to this last issue, we agree, and remand the
case for correction of the journal entry. We affirm on all remaining issues.
FACTUAL AND PROCEDURAL HISTORY
The facts here are not in dispute. Given the issues presented in this appeal, we
need not recount the evidence in detail. We will focus only on the facts related to the
charges for which Sanders was convicted.
The volleyball coach grooms a 14-year-old player for sex.
Sometime in 2015, Doe began playing volleyball at a facility where Sanders, 41,
was a coach. Sanders became friends with Doe's parents and eventually began
communicating with 14-year-old Doe on Snapchat. Their messages were initially about
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volleyball but eventually became more personal, then sexual, in nature. Sanders began
complimenting Doe on her body and revealed that he had dreams about having sexual
intercourse with her.
The coach starts having sexual intercourse with the player after she turns 16,
recording the encounters on his cell phone, and they exchange explicit photos via
Snapchat.
About a month after she turned 16, Sanders kissed Doe during a private volleyball
lesson. A month later, Sanders invited Doe to his house, where they had sexual
intercourse for the first time. Sanders recorded this and many of their sexual encounters
on his cell phone. Doe stated at trial that she did not want to view any of these videos but
knew Sanders was recording them. The jury found Sanders guilty of sexual exploitation
of a child in violation of K.S.A. 21-5510(a)(2) for possessing one of these videos.
Although Doe had initially resisted several requests by Sanders to provide nude pictures
of herself, she eventually relented, and they began regularly exchanging nude pictures on
Snapchat as well. These requests formed the basis for one of Sanders' convictions for
sexual exploitation of a child in violation of K.S.A. 21-5510(a)(1).
The player tells a friend about her sexual relationship with the coach and the
friend contacts the police.
At some point between late 2017 and early 2018, Doe told a friend about her
sexual relationship with Sanders and that disclosure led to the police filing a report.
When a detective interviewed Doe, she first denied anything inappropriate had happened.
Later in the interview, she acknowledged she had been having sexual intercourse with
Sanders.
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Before her interview with the police, the coach told the player not to say anything
and mentioned he had a loaded firearm.
Before the interview, Sanders had messaged Doe "not to say anything" and
reminded her that she knew what would happen if anyone found out about the
relationship and mentioned he had a loaded firearm. These messages supported Sanders'
aggravated intimidation of a witness conviction.
The coach continues to ask for lewd pictures of the player, who complies.
After Doe's interview with police, her parents restricted her social media usage by
taking away her phone. She later bypassed these restrictions by logging into her
Instagram account on her friend's phone. Later at a sleepover, a friend intercepted
messages between Sanders and Doe on Doe's phone. Sanders asked Doe to send nude
pictures of herself. After she sent a photo of her vagina to Sanders, Doe's friend saw the
picture and told her own mother what happened. The friend's mother then contacted law
enforcement. This incident formed the basis for Sanders' final conviction for sexual
exploitation of a child.
The coach is convicted after a jury trial.
A jury convicted Sanders of two counts of sexual exploitation of a child under
K.S.A. 21-5510(a)(1) (inducing a child under 18 to engage in sexually explicit conduct
with the intent to promote any performance), one count of sexual exploitation of a child
under K.S.A. 21-5510 (a)(2) (possession of a visual depiction of a someone under the age
of 18 in which the child is engaged in sexually explicit conduct with the intent to arouse
the sexual desires or prurient interests of any person); and one count of aggravated
intimidation of a witness under K.S.A. 21- 5909(a)(2)(A) (attempting to prevent a victim
from reporting the victimization to law enforcement when the victim is under 18).
5
Although Doe could legally consent to sexual intercourse with Sanders because of her
age, the sexual exploitation of a child charges stemmed from Sanders requesting nude
pictures of Doe.
The coach is sentenced to 10 years in prison and assessed fines and costs.
At sentencing, the district court found Sanders' criminal history score was I and
imposed a controlling sentence of 122 months in prison based on a combination of
consecutive, aggravated prison terms on his four convictions capped under the "double
rule." See K.S.A. 21-6819(b)(4). The court also imposed lifetime postrelease supervision
and ordered Sanders to pay "ordinary costs and fees," which included a $151.26 witness
mileage fee. The court's journal entry of judgment, however, indicated a $315.01 witness
mileage fee, as well as a $1,600 "Children's Advocacy Center fee." Before the hearing
ended, the court granted defense counsel leave to brief a constitutional challenge to the
lifetime postrelease supervision term based on State v. Freeman, 223 Kan. 362, Syl. ¶ 2,
574 P.2d 950 (1978). The court later held a hearing on the motion and ruled the lifetime
postrelease supervision term was constitutional after evaluating the Freeman factors in a
lengthy oral ruling and concluding all three prongs weighed against Sanders.
Sanders timely appealed.
ANALYSIS
Sanders does not challenge any of the facts established during trial. Instead, the
basic premise of his constitutional and statutory arguments is that Kansas sets the age of
consent for sexual intercourse at 16 years old. See K.S.A. 21-5507(a)(1)(A). Therefore,
his requests to exchange nude images with Doe and his possession of videos depicting
their sexual encounters amounted to private, consensual sexual conduct that is entitled to
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protection under the Due Process Clauses of both the United States and Kansas
Constitutions.
Under this theory, he raises several constitutional and statutory claims we will
address in turn, but our standard of review is the same on all—unlimited. State v. Carr,
314 Kan. 615, 646,
502 P.3d 546 (2022) (holding the constitutionality of a statute is a
question of law subject to unlimited review), cert. denied
143 S. Ct. 581 (2023); State v.
Betts,
316 Kan. 191, 197,
514 P.3d 341 (2022) (finding statutory interpretation presents a
question of law over which appellate courts have unlimited review).
I. K.S.A. 21-5510 is not unconstitutional as applied to Sanders.
Sanders argues K.S.A. 21-5510 is unconstitutional as applied to him because
sexual privacy between consenting participants is a form of liberty interest protected by
the Due Process Clause of the Fourteenth Amendment to the United States
Constitution—as well as its counterpart found in section 18 of the Kansas Constitution
Bill of Rights. And for the first time on appeal, Sanders also contends section 1 of the
Kansas Constitution Bill of Rights confers a "'right to privacy'" as a "'natural right'"
which prevents the State from criminalizing his private, consensual sexual conduct. See
Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, Syl. ¶ 8,
440 P.3d 461 (2019) (Hodes I)
(recognizing right to personal autonomy); see also Hodes & Nauser v. Kobach,
318 Kan.
940, 950,
551 P.3d 37 (2024) (Hodes II) (reaffirming Hodes I); Hodes & Nauser v.
Stanek,
318 Kan. 995, 1005,
551 P.3d 62 (2024) (Hodes III) (same).
A. Sanders fails to properly preserve his claim under section 1 of the Kansas
Constitution Bill of Rights.
To begin, Sanders concedes that he is raising his constitutional claim based on
section 1 of the Kansas Constitution Bill of Rights for the first time on appeal.
Accordingly, to review this claim Sanders must justify application of a recognized
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exception to the prohibition against considering constitutional issues raised for the first
time on appeal. And while the record shows Sanders indeed raised his arguments based
on the Fourteenth Amendment and section 18 of the Kansas Constitution Bill of Rights in
a pretrial motion to dismiss two of the charges, his motion to dismiss only challenged the
constitutionality of K.S.A. 21-5510(a)(1). This is true because the State had not yet added
any charge based on K.S.A. 21-5510(a)(2) when he filed his motion.
Sanders fails to explain why he neglected to incorporate his constitutional claim
when he moved to dismiss the new charges based on (a)(2), simply offering that the issue
was nonetheless preserved because his rationale "applies equally" to both subsections of
the statute (sections 1 and 18). But preserving a constitutional challenge for appeal is not
so simple.
Sanders does not establish that this court must invoke any of the recognized
exceptions to consider an unpreserved issue for the first time on appeal. See State v.
Rhoiney, 314 Kan. 497, 500,
501 P.3d 368 (2021) ("[A] 'decision to review an
unpreserved claim under an exception is a prudential one.' Even if an exception may
apply, we are under no obligation to review the claim. [Citation omitted.]"). Sanders
contends his as applied constitutional challenge to K.S.A. 21-5510 can be reviewed for
the first time on appeal because it (1) presents a purely legal question arising on
undisputed facts and its resolution would be finally determinative of the case, and (2) is
necessary to review the claim to prevent the denial of a fundamental right. State v. Allen,
314 Kan. 280, 283,
497 P.3d 566 (2021) (recognizing these exceptions).
Contrary to Sanders' suggestion, the only relevant fact is not simply that he was
"convicted of crimes based on his private, consensual sexual conduct with an individual
above Kansas's age of consent." While Sanders discusses his sexual exploitation of a
child convictions under the general umbrella term of "exchanging sexual imagery," it
bears mentioning that subsections (a)(1) and (a)(2) prohibit entirely different conduct.
8
K.S.A. 21-5510(a)(1) prohibits "[e]mploying, using, persuading, inducing, enticing or
coercing a child under 18 years of age, or a person whom the offender believes to be a
child under 18 years of age, to engage in sexually explicit conduct with the intent to
promote any performance." But K.S.A. 21-5510(a)(2) prohibits "possessing any visual
depiction of a child under 18 years of age shown or heard engaging in sexually explicit
conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest
of the offender or any other person. " In other words, subsection (a)(1) covers the creation
of child pornography, while subsection (a)(2) covers mere possession.
This distinction matters because the entire premise of Sanders' constitutional
arguments is built on an alleged infringement of his fundamental right to engage in
private and consensual sexual activity. Yet only the charges based on subsection (a)(1)
directly implicate whether Doe could lawfully consent to sending sexually explicit
images of herself to Sanders. In contrast, the charge based on subsection (a)(2) was based
on Sanders possessing a video depicting their consensual sexual activity. There was trial
evidence suggesting Doe did not consent to Sanders recording and possessing those
videos, based on her testimony that she did not want to view them, but knew he was
recording them. Stated another way, were this court to agree with Sanders on his
challenge to subsection (a)(1) based on the Fourteenth Amendment and section 18 of the
Kansas Constitution Bill of Rights, that does not automatically mean his possession of the
video under subsection (a)(2) falls within the same scope of constitutional protection for
private, consensual sexual activity. Distinguishing these two situations may require
further development of facts, which is properly the function of the trial court.
Sanders invokes the fundamental rights exception to consider his new challenge
based on section 1 of the Kansas Constitution Bill of Rights, which by definition requires
him to establish a fundamental right is being threatened. See Hodes I, 309 Kan. at 673
(The presumption of constitutionality does not apply when a statute implicates
9
fundamental interests. In such cases, "'the burden of proof is shifted from plaintiff to
defendant and the ordinary presumption of validity of the statute is reversed.'").
As the State points out, other panels of this court have declined to review similar
claims for the first time on appeal based on the rationale in Hodes I because of the
necessary factual inquiry that must be conducted when reviewing an as applied challenge.
See State v. Hanks, No. 125,270, 2024 WL 136655, at *12-13 (Kan. App. 2024)
(unpublished opinion) (declining to address as applied constitutional challenge to rape,
sodomy, and aggravated indecent liberties statutes as violation of "right to choose one's
own sexual partner"), rev. denied
318 Kan. 1088 (2024); State v. Davis, No. 124,980,
2023 WL 5811485, at *3 (Kan. App. 2023) (unpublished opinion) (indecent liberties),
rev. denied
319 Kan. __ (September 6, 2024). Like these prior panels, we exercise our
discretion to decline Sanders' invitation to address the merits of his unpreserved
challenge based on section 1 of the Kansas Constitution Bill of Rights and Hodes I. And
the same rationale applies to decline reviewing an unpreserved challenge to K.S.A. 21-
5510(a)(2) based on the Fourteenth Amendment and section 18 of the Kansas
Constitution Bill of Rights.
In any event, because the record shows Sanders preserved a challenge to K.S.A.
21-5510(a)(1) based on the Fourteenth Amendment and section 18 of the Kansas
Constitution Bill of Rights, we will proceed to the merits of that claim.
B. The Fourteenth Amendment does not protect a broadly defined fundamental
right to engage in all forms of private, consensual sexual conduct.
Sanders argues K.S.A. 21-5510 is unconstitutional as applied to him because it
criminalizes "private consensual sexual conduct," in the form of "exchanging sexual
imagery" with someone above the legal age of consent. The legal foundation for this
argument stems from the 2003 decision in Lawrence v. Texas, 539 U.S. 558, 560, 123 S.
10
Ct. 2472, 156 L. Ed. 2d 508 (2003), in which the United States Supreme Court held a
Texas law criminalizing homosexual sodomy was unconstitutional. But to fully
understand Sanders' right to privacy argument, we must look back even further at how the
Supreme Court caselaw in this area has developed.
To begin, neither the United States Constitution nor the Kansas Constitution has
specific language guaranteeing a "right to privacy." The Due Process Clause of the
Fourteenth Amendment states: "[N]or shall any State deprive any person of life, liberty,
or property, without due process of law." The counterpart in section 18 of the Kansas
Constitution Bill of Rights states: "All persons, for injuries suffered in person, reputation
or property, shall have remedy by due course of law, and justice administered without
delay." Kansas courts have historically analyzed section 18 of the Kansas Constitution
Bill of Rights as coextensive with its federal counterpart. See State v. Boysaw, 309 Kan.
526, 537-38,
439 P.3d 909 (2019).
But the United States Supreme Court has recognized the explicit rights guaranteed
in the federal Bill of Rights "have penumbras, formed by emanations from those
guarantees that help give them life and substance" and which "create zones of privacy."
Griswold v. Connecticut, 381 U.S. 479, 484,
85 S. Ct. 1678,
14 L. Ed. 2d 510 (1965). In
Griswold, the Court struck down Connecticut's ban on use of contraceptives by married
persons, holding the laws unconstitutionally intruded upon the right of marital privacy,
part of the penumbras of the Bill of Rights.
The Court later extended the right discussed in Griswold to include unmarried
persons, striking down laws restricting the distribution of contraceptives to unmarried
individuals on Equal Protection grounds. See Eisenstadt v. Baird, 405 U.S. 438, 448-54,
92 S. Ct. 1029,
31 L. Ed. 2d 349 (1972). The Eisenstadt Court explained: "If the right of
privacy means anything, it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as
11
the decision whether to bear or beget a child." (Emphasis added.) 405 U.S. at 453. A few
years later, the Court considered a New York law prohibiting sale or distribution of
contraceptives to persons under the 16 years old in Carey v. Population Services
International,
431 U.S. 678,
97 S. Ct. 2010,
52 L. Ed. 2d 675 (1977). There, four justices
agreed "the right to privacy in connection with decisions affecting procreation extends to
minors as well as to adults."
431 U.S. at 693.
Griswold and Eisenstadt led to the Court's decision in Roe v. Wade, 410 U.S. 113,
152-53,
93 S. Ct. 705,
35 L. Ed. 2d 147 (1973), overruled by Dobbs v. Jackson Women's
Health Organization,
597 U.S. 215,
142 S. Ct. 2228,
213 L. Ed. 2d 545 (2022), which
held the right to privacy only included "'fundamental'" rights, including a woman's
decision whether to terminate a pregnancy. Although Dobbs overruled Roe, the majority
opinion did so by repeatedly distinguishing the right to abortion recognized in Roe as
uniquely involving termination of a "'potential life'" and reiterating that overruling Roe
"should [not] be understood to cast doubt on precedents that do not concern abortion."
Dobbs,
597 U.S. at 290, 295.
Returning to Lawrence, it involved a constitutional challenge to a sodomy statute.
The key difference is that the Texas statute at issue applied only to persons of the same
sex. The Lawrence Court stated that the cases involved "whether the petitioners were free
as adults to engage in the private conduct in the exercise of their liberty under the Due
Process Clause of the Fourteenth Amendment to the Constitution." 539 U.S. at 564. And
ultimately, the Lawrence Court concluded the Texas law was unconstitutional because it
furthered no legitimate state interest to justify intruding into an individual's intimate
personal and private life. The Court explained its ruling as follows:
"The present case does not involve minors. It does not involve persons who
might be injured or coerced or who are situated in relationships where consent might not
easily be refused. It does not involve public conduct or prostitution. It does not involve
12
whether the government must give formal recognition to any relationship that
homosexual persons seek to enter. The case does involve two adults who, with full and
mutual consent from each other, engaged in sexual practices common to a homosexual
lifestyle. The petitioners are entitled to respect for their private lives. The State cannot
demean their existence or control their destiny by making their private sexual conduct a
crime. Their right to liberty under the Due Process Clause gives them the full right to
engage in their conduct without intervention of the government." 539 U.S. at 578.
Sanders acknowledges that Lawrence explicitly held the case "does not involve
minors," but nonetheless seeks to apply its holdings to the Kansas sexual exploitation of a
child statute. But as the State points out, numerous federal courts have rejected similar
attempts to apply Lawrence in cases like this. For instance, in United States v. Bach, 400
F.3d 622, 629 (8th Cir. 2005), the 41-year-old defendant was prosecuted for pressuring a
16-year-old boy to pose for nude photos and then transmitted those photos over the
internet. Like Sanders, Bach sought to challenge his convictions based on the liberty
interest recognized in Lawrence, but the Eighth Circuit disagreed that Lawrence applied
since the conduct involved a minor who was coerced into engaging in the conduct at
issue. Bach,
400 F.3d at 629.
The Eight Circuit adhered to this reasoning in United States v. Rouse, 936 F.3d
849, 852 (8th Cir. 2019), which is more factually analogous. Rouse engaged in a sexual
relationship with a 16-year-old girl in Nebraska, which also sets the age of consent at 16
years of age. Rouse recorded some of their sexual activity with the victim's consent and
later transmitted those videos to the victim. The victim also sent sexually explicit photos
to Rouse. Rouse conditionally pleaded guilty to distribution of child pornography under
18 U.S.C. § 2252A(a)(2), reserving the right to appeal the constitutionality of the statute.
But like in Bach, the appellate court rejected his argument that Lawrence created "a right
to engage in lawful sexual conduct with a minor and record it on video for personal use."
936 F.3d at 852.
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Lastly, the State references State v. Senters, 270 Neb. 19,
699 N.W.2d 810 (2005),
which also rejected a substantive due process challenge based on Lawrence in a case
involving a defendant convicted of making child pornography under a Nebraska law.
Like the Eighth Circuit, the Nebraska Supreme Court believed Lawrence was not
intended to apply to conduct involving children.
270 Neb. at 25. The Senters court added
that "the State, in regulating child pornography, remains free to define children as persons
under the age of 18, even if the age of consent is lower, as long as the law passes
traditional rational basis review."
270 Neb. at 25. And under that standard of review, the
Senters court concluded the State has a legitimate reason to ban the creation of child
pornography because it "is often associated with child abuse and exploitation, resulting in
physical and psychological harm to the child," and due to the potential for "reputational
harm."
270 Neb. at 26-27 ("It is reasonable to conclude that persons 16 and 17 years old,
although old enough to consent to sexual relations, may not fully appreciate that today's
recording of a private, intimate moment may be the Internet's biggest hit next week.").
We find the Nebraska court's analysis persuasive and we adopt it here.
Sanders recognizes this caselaw but asserts the Lawrence court possibly used
"'minor'" to mean someone under the age of consent. He also contends the "disclaimer is
simply intended to dispel the notion that nonconsensual or questionably-consensual
private sexual conduct is constitutionally protected." As support, Sanders cites Esquivel-Quintana v. Sessions, 581 U.S. 385, 398,
137 S. Ct. 1562,
198 L. Ed. 2d 22 (2017), in
which the Supreme Court interpreted the federal sexual abuse of a minor statute as
requiring the age of the victim to be less than 16. He also references In re J.M.,
276 Ga.
88, 90,
575 S.E.2d 441 (2003), which held the constitutional right of privacy in the
Georgia constitution prohibited the State from criminalizing "the private, noncommercial, consensual sexual acts of two persons legally capable of consenting to those
acts."
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Sanders also points out that the Kansas Supreme Court applied Lawrence in State
v. Limon, 280 Kan. 275, 287,
122 P.3d 22 (2005), which involved an equal protection
challenge to the unlawful voluntary sexual relations statute because it punished members
of different sexes less harshly than members of the same sex engaging in the same
conduct. Limon, who was 18, was convicted of criminal sodomy against 15-year-old
M.A.R. But as the State correctly notes, Limon did not involve a substantive due process
claim like the one Sanders is raising. But more to the point, Sanders' reference to these
cases inadvertently reveals why his argument is not persuasive.
First, Sanders repeatedly equates the age of consent with the age of majority,
which is incorrect. Whether a person is considered a child in Kansas is statutorily
different than whether one is considered of sufficient age to consent to sexual intercourse.
The Kansas Legislature has the power to determine the age of majority and has said it
begins at age 18. See K.S.A. 38-101. Elsewhere in the statutes, a "[m]inor child" means
any unemancipated child under the age of 18. K.S.A. 38-615(d). For a minor child to
have the rights of one 18 or over, the child must petition the district to confer those rights.
K.S.A. 38-108; K.S.A. 38-109.
So while persons over the age of 16 can lawfully consent to sexual intercourse, the
sexual exploitation of a child statute itself still refers to such persons as a "child." See
K.S.A. 21-5510. Thus, Sanders' attempt to equate the ability to consent to sexual
intercourse with being an "adult" fails.
Next, Esquivel-Quintana is of little relevance since it did not involve any
constitutional claims, let alone one based on the defendant's substantive due process
rights. 581 U.S. 385. While In re J.M. and Limon directly involved constitutional
challenges to laws that criminalized sexual conduct involving a minor, Sanders is not
being prosecuted for having sex with a minor. His convictions for sexual exploitation of a
child relate to enticing a 16-year-old to send him sexually explicit photos and possessing
15
a video of a 16-year-old engaging in sexual activity. At no point in his brief does Sanders
provide any authority recognizing this conduct as deserving of constitutional protection.
In contrast, the State references several decisions which have rejected the notion that
making and distributing child pornography is a constitutionally protected activity simply
because the minor could lawfully consent to sexual activity. Failure to support a point
with pertinent authority or failure to show why a point is sound despite a lack of
supporting authority or in the face of contrary authority is like failing to brief the issue.
State v. Meggerson, 312 Kan. 238, 246,
474 P.3d 761 (2020).
Finally, Sanders tries to seize upon language in Obergefell v. Hodges, 576 U.S.
644, 667,
135 S. Ct. 2584,
192 L. Ed. 2d 609 (2015), to argue that Lawrence "broadly
protects private 'intimate association' of any kind." But as mentioned, Lawrence explicitly
placed limits on its applicability by noting the case "does not involve minors[,] . . .
persons who might be injured or coerced or who are situated in relationships where
consent might not easily be refused[, or] . . . public conduct or prostitution." Lawrence,
539 U.S. at 578. Thus, contrary to Sanders' assertion, Lawrence did not recognize a
broadly defined fundamental right to engage in all forms of private sexual conduct, and
we reject Sanders' claim that making and distributing child pornography is a
constitutionally protected activity simply because the minor could lawfully consent to
sexual activity. Accordingly, we find Sanders fails to carry his burden of proving his
substantive due process claim based on Lawrence and the Fourteenth Amendment.
C. Sanders fails to brief his claim that a "right to privacy" is a natural right
protected under section 1 of the Kansas Constitution Bill of Rights.
Moving to Sanders' challenge based on section 1 of the Kansas Constitution Bill of
Rights, he first argues that the Kansas Supreme Court has identified a "'right to privacy'"
as a "'natural right'" deserving of constitutional protection. See Hodes I, 309 Kan. at 650
(citing Kunz v. Allen, 102 Kan. 883, 884,
172 P. 532 [1918]). Sanders also argues the
16
"right to self-autonomy" recognized in Hodes I should also include the right to engage in
private, consensual sexual intimacy. These points are unpersuasive and lack adequate
support.
While Sanders is correct that Hodes I mentioned privacy as a natural right,
Sanders ignores that the Hodes I court explained that explicitly recognizing a
constitutional right to privacy was "'not necessary'" to its decision to recognize that the
Kansas Constitution protects the right to decide whether to continue a pregnancy. Hodes
I, 309 Kan. at 650 (quoting Preterm Cleveland v. Voinovich, 89 Ohio App. 3d 684, 692,
627 N.E.2d 570 [1993]). Similarly, Hodes I said nothing about whether the right to self-autonomy includes a right to sexual privacy as Sanders asserts in his brief. The only cases
cited by Sanders other than Hodes I on this issue are not on point because they
specifically dealt with interpreting the Georgia constitutional right to privacy that has
been developed through years of Georgia caselaw. See In re J.M.,
276 Ga. 88; Powell v.
State,
270 Ga. 327, 329,
510 S.E.2d 18 (1998). For these reasons, we likewise find he has
failed to carry his burden of proving a claim based on section 1 of the Kansas
Constitution Bill of Rights.
II. The identical offense doctrine does not apply to Sanders' sentence.
Sanders next argues that the district court should have sentenced him for attempted
aggravated intimidation of a witness because he was found guilty of a completed
aggravated intimidation of a witness based on a jury finding of attempted conduct. Stated
another way, Sanders asserts the identical offense doctrine applies to his case because the
elements of his crime of conviction are identical to an attempt to commit the same
offense. We find his argument unpersuasive.
As Sanders notes, where two criminal offenses have the same elements but impose
different penalties, a defendant convicted of either crime may be sentenced only under
17
the lesser penalty provision. State v. Euler, 314 Kan. 391, 400,
499 P.3d 448 (2021). The
identical offense doctrine applies either when: (1) the two offenses each have some
provisions that overlap, the overlapping provisions apply to the charged crime, and the
overlapping portions of the offenses are identical except the penalty; or (2) the two
offenses have entirely identical provisions except the penalty provisions. 314 Kan. at 400.
According to Sanders, the former scenario is present here because he was convicted of
aggravated intimidation of a witness based on an attempt to prevent Doe from reporting
his crimes, which has elements that overlap with the crime of attempted aggravated
intimidation of a witness.
We disagree. The identical offense doctrine does not apply because Sanders is not
comparing two separate criminal offenses, but two offenses arising under a single statute
with different severity levels. See State v. Robinson, 293 Kan. 1002, 1037,
270 P.3d 1183
(2012) (holding identical offense doctrine "applies only when two separate criminal
offenses are compared"). Sanders points out the rule cited by the State was made "in the
context of cases in which a lesser offense was asserted to be identical to a greater offense
that criminalized the same conduct as the lesser offense with an additional aggravating
element." He also asserts this case involves multiple statutes, particularly K.S.A. 21-5301
(defining "attempt" and prescribing lesser penalties for attempted crimes) and K.S.A. 21-
5909 (defining simple and aggravated intimidation of a witness offenses and prescribing
penalties).
Sanders, however, makes a critical error in presenting his identical offense
doctrine claim. While he is correct that K.S.A. 21-5301(a) defines "attempt" crimes, he
overlooks that the Legislature deliberately designed the intimidation of a witness statute
to avoid its application by including "attempt" language in the offense's elements. See
K.S.A. 21-5909(a); State v. Mora, 315 Kan. 537, 542,
509 P.3d 1201 (2022) (discussing
different ways Legislature has addressed attempt crimes and when default definition
applies); State v. Horn,
288 Kan. 690, Syl. ¶ 2,
206 P.3d 526 (2009) ("Where the statute
18
defining a crime does not include an attempt as a means of violating that criminal statute,
an attempt to commit the crime is a separate offense which is created and defined by the
provisions of [predecessor to K.S.A. 21-5301(a)].").
Moreover, the Kansas Supreme Court has held "attempting to prevent or dissuade"
a victim is "not [an] alternative means of committing the crime of aggravated
intimidation of a victim." State v. Aguirre, 296 Kan. 99, 108,
290 P.3d 612 (2012). "[T]he
crime of aggravated intimidation is complete when the defendant, with the requisite
intent, commits an act to intimidate the victim."
296 Kan. at 106. In other words, the
attempt subsection of the aggravated intimidation of a witness statute which Sanders was
convicted of is but one example of the factual circumstances that could establish the actus
reus of the offense.
We conclude that the identical offense doctrine does not apply here because
attempted aggravated intimidation of a witness, K.S.A. 21- 5909(a)(2)(A), is not a
separate offense controlled by K.S.A. 21-5301 or subject to the reduced penalty
provisions of that statute. Because the aggravated intimidation of a witness statute
includes attempt language, the offense is complete even when a defendant attempts to
prevent or dissuade a witness. Accordingly, we reject Sanders' invitation to apply the
identical offense doctrine to his conviction for aggravated intimidation of a witness.
III. Because there was evidence presented to the jury regarding Sanders' age, the
district court did not err in imposing lifetime postrelease supervision.
Sanders next challenges the district court's imposition of a lifetime postrelease
supervision term under K.S.A. 22-3717(d)(1)(G)(i), which requires a lifetime term if an
offender was 18 or older when they committed a sexually violent crime. According to
Sanders, his crime of conviction did not include his age as an element of the offense, so
19
he was convicted of a "lesser" offense that only required a 60-month postrelease
supervision term.
To begin, Sanders concedes he is raising this claim for the first time on appeal, yet
he asserts this court can consider it because an illegal sentence can be corrected "'at any
time.'" K.S.A. 22-3504(a); State v. Dickey, 301 Kan. 1018, 1034,
350 P.3d 1054 (2015).
Our Supreme Court has repeatedly held that K.S.A. 22-3504(a) does not cover a
claim that a sentence violates a constitutional provision. See State v. Warrior, 303 Kan.
1008, 1010,
368 P.3d 1111 (2016). Apparently to avoid this rule, Sanders insists he is
challenging his lifetime postrelease supervision term as a statutory illegal sentence claim
rather than raising a claim based on a constitutional violation under Apprendi v. New
Jersey,
530 U.S. 466, 490,
120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000). Yet, he relies
heavily on Apprendi to argue his claim.
For example, Sanders asserts "[c]rimes are defined by their 'elements,'" and
"[c]onstitutionally speaking an 'element' is any fact that must be proven to either create,
or enhance, a defendant's exposure to punishment." These assertions are merely
recitations of the Apprendi court's recognition that a "'sentence enhancement' [factor] is
the functional equivalent of an element of a greater offense than the one covered by the
jury's guilty verdict. Indeed, it fits squarely within the usual definition of an 'element' of
the offense." Apprendi, 530 U.S. at 494 n.19; State v. Bello,
289 Kan. 191, 199,
211 P.3d
139 (2009) ("[M]erely because a state legislature places a sentence enhancing factor
within the sentencing provisions of the criminal code does not mean that the factor is not
an essential element of the offense.") (citing Apprendi, 530 U.S. at 495).
By definition, Sanders' purported "illegal sentence" claim clearly implicates
Apprendi because he is arguing the district court increased the penalty for his crime of
conviction beyond the prescribed statutory maximum based solely on judicial fact-finding
20
of his age. See Blakely v. Washington, 542 U.S. 296, 303-04,
124 S. Ct. 2531,
159 L. Ed.
2d 403 (2004) ("[T]he 'statutory maximum' for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant. In other words, the relevant 'statutory maximum' is not the
maximum sentence a judge may impose after finding additional facts, but the maximum
[a judge] may impose without any additional findings. [Citations omitted.]"). Put simply,
Sanders cannot disguise his argument as an illegal sentence claim to avoid adverse
caselaw stemming from Apprendi while still relying on its holdings. His illegal sentence
claim necessarily fails.
We note that the recent Supreme Court case of State v. Nunez, 319 Kan. 351, 354,
554 P. 3d 656 (2024)—decided while this appeal was pending— did address this issue,
but not as an illegal sentence claim. There the court noted that an Apprendi error can be
harmless if the reviewing court is convinced beyond a reasonable doubt the jury verdict
would have been the same absent the error related to the omitted element, and that the
omitted element was also uncontested and supported by overwhelming evidence. 319
Kan. at 356. Here, although the State never explicitly asked the jury to make a finding of
Sanders' age, Detective Crystal Schell nonetheless testified at trial that Sanders provided
his date of birth as March 21, 1974, upon his arrest. This meant Sanders was 43 years old
when the investigation began in February 2018, and 44 years old at the time of arrest. He
did not contest this evidence. Based on this evidence, the jury could reasonably have
concluded beyond a reasonable doubt that Sanders was 18 or older at the time of his
crimes.
IV. Lifetime postrelease supervision is not cruel or unusual punishment as applied to
Sanders.
Sanders also challenges his lifetime postrelease supervision term by arguing it
constitutes cruel or unusual punishment in violation of section 9 of the Kansas
21
Constitution Bill of Rights under the specific facts of his case. As support, he asserts his
conduct—sharing and possessing sexual imagery of Doe—is "decidedly less harmful
than actual sexual intercourse that our legislature has not deemed fit to criminalize at all,"
and that no other states mandate an irrevocable term of lifetime supervision for similar
conduct.
Appellate courts apply a bifurcated standard of review when assessing whether a
sentence is cruel or unusual in violation of section 9 of the Kansas Constitution Bill of
Rights. See State v. Mossman, 294 Kan. 901, 906,
281 P.3d 153 (2012) (citing State v.
Ortega-Cadelan,
287 Kan. 157, 160,
194 P.3d 1195 [2008]). We review the district
court's factual findings for substantial competent evidence without reweighing the
evidence. The legal conclusions drawn from the factual findings are considered de novo.
294 Kan. at 906 (citing State v. Gant,
288 Kan. 76, 80,
201 P.3d 673 [2009]; State v.
Woolverton,
284 Kan. 59, 70,
159 P.3d 985 [2007]).
In addition, a challenge to lifetime postrelease supervision imposed under K.S.A.
22-3717(d)(1)(G) is an indirect attack on the statute's constitutionality as applied. "[I]f
there is any reasonable way to construe the statute as constitutional, courts have the duty
to do so by resolving all doubts in favor of constitutionality." Mossman, 294 Kan. at 906-
07 (citing State v. Laturner,
289 Kan. 727, 735,
218 P.3d 23 [2009]).
As Sanders notes, he is specifically raising an as-applied challenge based solely on
section 9 of the Kansas Constitution Bill of Rights, which provides "[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted."
Kansas courts assess such challenges relying on the analysis set out in Freeman, which
identified the following relevant factors for determining whether a particular sentence
violates the Kansas Constitution's prohibition against cruel and unusual punishments:
22
"(1) The nature of the offense and the character of the offender should be
examined with particular regard to the degree of danger present to society; relevant to this
inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the
extent of culpability for the injury resulting, and the penological purposes of the
prescribed punishment;
"(2) A comparison of the punishment with punishments imposed in this
jurisdiction for more serious offenses, and if among them are found more serious crimes
punished less severely than the offense in question the challenged penalty is to that extent
suspect; and
"(3) A comparison of the penalty with punishments in other jurisdictions for the
same offense." 223 Kan. at 367.
No one factor is controlling, and the court should consider each factor—but one
factor may weigh so heavily in a specific case that it determines the outcome. State v.
Funk, 301 Kan. 925, 935,
349 P.3d 1230 (2015).
A. Freeman Factor 1: Nature of the Offense and Character of the Offender
The first Freeman factor is "inherently factual, requiring examination of the facts
of the crime and the particular characteristics of the defendant." Ortega-Cadelan, 287
Kan. at 161. Sanders argues the district court improperly considered this factor by basing
its decision primarily on findings related to his character, rather than the nature of his
criminal conduct that led to his convictions. Sanders makes no attempt to challenge the
district court's factual findings that he "sat in a fiduciary relationship" to "groom[]" Doe
and was a "predator." As a result, he has waived and abandoned those points. Meggerson,
312 Kan. at 246 (points raised incidentally in a brief and not argued therein are deemed
waived or abandoned).
23
Sanders primarily argues the district court improperly weighed this factor in the
State's favor because his level of culpability is lower than a hypothetical defendant who
possessed or requested sexually explicit images of someone under the age of 16 who
could not lawfully consent to a sexual relationship. He also points out that his criminal
history was low, thus suggesting he is not "prone to the sort of recidivism that postrelease
sentences are intended to prevent." The only case Sanders cites in direct support of his
view that this factor weighs in his favor is State v. Proctor, No. 104,697, 2013 WL
6726286, at *4 (Kan. App. 2013) (unpublished opinion), for the proposition that the
State's "legitimate interest in the indefinite monitoring of child sex offenders . . . is not
without limit."
In Proctor, the 19-year-old defendant pleaded guilty to several child sex crimes
after he, on multiple occasions, "cajoled [a 12-year-old family friend] into having manual
and oral contact with [his] penis." 2013 WL 6726286, at *2. On appeal, this court found
the first Freeman factor weighed in the defendant's favor based on several facts, mainly
because the district court had determined the circumstances warranted imposing
probation.
2013 WL 6726286, at *4. In the panel's view, subjecting Proctor to a potential
lifetime prison sentence for a felony conviction was "constitutionally irreconcilable with
the district court's entirely proper determination to place Proctor on probation."
2013 WL
6726286, at *4. The panel also noted Proctor's young age and lack of criminal history,
combined with the evidence presented that Proctor himself was a victim of child sex
abuse, suggested the penological purposes of lifetime postrelease supervision would not
be served under the facts of the case.
2013 WL 6726286, at *5-6.
But Sanders cannot rely on Proctor because the only relevant factor present in both
cases is a lack of significant criminal history. And Proctor says nothing about a victim's
capability to consent factoring into the court's consideration of the first Freeman factor
because the crimes involved a 12-year-old victim. So contrary to Sanders' points, he
offers nothing but conclusory assertions to challenge the district court's legal conclusion
24
that the nature of his offenses and his character weighed in his favor. See Meggerson, 312
Kan. at 246. As a result, the district court correctly weighed the first Freeman factor in
the State's favor.
B. Freeman Factor 2: Comparison of Punishments in Kansas
When discussing the second Freeman factor, the district court found it "finds
against the defendant" without much elaboration. After making findings for all three
factors, the court explained the nature of the offense and Sanders' character—as well as
"the goals of post-release supervision"—"outweigh[ed] the lack of strict proportionality
with other sentences in Kansas and other jurisdictions, especially those that the sentence
is not grossly disproportional." The court also said it was "adopt[ing] the other findings
set forth in [State v. Cameron, 294 Kan. 884, 889,
281 P.3d 143 (2012); Mossman,
294
Kan. at 903; and State v. Collins, No. 105,523,
2012 WL 5519088, *3 (Kan. App. 2012)
(unpublished opinion)], and the arguments set forth by the State at this point in time."
Before discussing the cases referenced in the district court's ruling, we first note
the State made the following statements at the hearing potentially in relation to the
second Freeman factor:
• "[W]hile this is a sex offense and potentially lower severity level on the grid as
far [as] sex offense convictions would go, I would submit that this is still a
violent offense."
• "[I]n comparing this punishment with punishments imposed in this jurisdiction
for more serious offenses or even comparable offenses, I would submit again
that this does not rise to the level of being unconstitutional."
Both defendants in Cameron and Mossman compared the penalty for their crimes
of conviction—aggravated indecent solicitation of 12-year-old child and aggravated
25
indecent liberties with a 15-year-old child, respectively—to that imposed for an offender
convicted of second-degree murder to discuss proportionality. The Kansas Supreme
Court was unconvinced in both cases that a lifetime postrelease supervision term was so
grossly disproportionate to weigh the second Freeman factor in either defendants' favor
simply because the prison sentence for a second-degree murder conviction was longer.
See Cameron, 294 Kan. at 893; Mossman,
294 Kan. at 917. This court relied on the same
rationale in Collins to uphold the lifetime postrelease supervision term imposed for a
conviction of aggravated indecent solicitation of an 11-year-old child. Collins,
2012 WL
5519088, at *3-4.
Here, Sanders argues only the district court's analysis of the second Freeman
factor is "flawed" because his crimes might be less serious than "conduct that is lawful in
Kansas, and, thus, carries no punishment at all." In short, Sanders asserts this factor
should have weighed in his favor because "Kansas counterintuitively punishes the
exchange of sexual imagery more seriously than actual sexual intercourse," which in his
view is "decidedly odd and unjust" because he is being punished for conduct that "entails
a [lesser] level of intimacy."
The only authority Sanders cites to support his point is a concurring opinion in
Rouse, 936 F.3d at 852-53, in which Eighth Circuit Judge Beam wrote separately to note
that "the conviction and especially the sentence of 96 months–under the particular facts
of this case is unseemly and quite possibly unfair." Like Sanders, Rouse engaged in a
consensual sexual relationship with a 16-year-old girl. Rouse later plead guilty to a
distribution of child pornography charge for transmitting a video of one of the sexual
encounters to the victim. Rouse is inapplicable to the current issue because it did not
involve a challenge to any portion of the defendant's sentence as being cruel and unusual
punishment.
26
Moreover, as the State points out, accepting Sanders' invitation to substitute the
second Freeman factor for a more favorable comparison would be contrary to Kansas
Supreme Court precedent. State v. Rodriguez, 305 Kan. 1139, 1144,
390 P.3d 903 (2017)
(this court is duty bound to follow Kansas Supreme Court precedent). As Sanders offers
no compelling argument to counter the district court's rationale for weighing the second
Freeman factor in his favor, this court has to adopt the rationale in Cameron and
Mossman. Moreover, as these courts recognized, sexual exploitation of a child—
regardless of the victim's age—is still statutorily defined as a sexually violent crime.
K.S.A. 22-3717(d)(5)(H). Thus, we find that the district court's factual findings support
its legal conclusion that the second Freeman factor does not weigh in Sanders' favor.
C. Freeman Factor 3: Comparison with Punishments in Other States
When discussing the third and final Freeman factor, the district court found "there
are other jurisdictions that have this same sentencing scheme," so it "weighs against the
defendant as well." And as mentioned above, the court explained the first Freeman factor
"outweigh[ed] the lack of strict proportionality with other sentences in Kansas and other
jurisdictions, especially those that the sentence is not grossly disproportional" and
adopted the rationale expressed in Collins, Cameron, and Mossman.
Like the previous factor, Sanders says the district court's analysis is flawed
because Kansas mandates an irrevocable term of lifetime postrelease supervision for
conduct that would not be punished similarly in other jurisdictions. Yet he mentions the
Kansas Supreme Court has recognized that there is no national consensus against
imposing lifetime postrelease supervision on offenders convicted of child pornography
and similar offenses. See State v. Williams, 298 Kan. 1075, 1088-89,
319 P.3d 528 (2014)
(citing United States v. Williams,
636 F.3d 1229 [9th Cir. 2011]) (considering categorical
challenge to lifetime postrelease supervision arising under the Eighth Amendment). But
27
according to Sanders, it is significant that Kansas requires judges to impose lifetime
supervision, while that decision is discretionary at the federal level.
As an example, Sanders compares two hypothetical defendants: (1) "a pedophile
[who] downloads thousands of sexually sadistic images depicting extremely young
children"; and (2) a 19-year-old female "[who] requests a nude photo from her 17-year-old boyfriend." Because a sentencing judge would be compelled to impose lifetime
postrelease supervision on both defendants under Kansas law—but could use "his or her
common sense to distinguish the pedophile from the 19-year-old who had the misfortune
of having a slightly younger boyfriend" under federal law—Sanders argues the third
Freeman factor should weigh in his favor.
In response, the State points to this court's decision in State v. Wieland, No.
114,900, 2017 WL 657999, at *5-6 (Kan. App. 2017) (unpublished opinion), which
rejected an as-applied challenge to a term of lifetime postrelease supervision based on
section 9 of the Kansas Constitution Bill of Rights. There, we recognized that "Kansas
appears to impose the most severe postrelease supervision for attempted possession of
child pornography. . . . [But] that doesn't mean the state with the harshest punishment
necessarily has committed a constitutional violation. Or here, since that appears to be
Kansas, the punishment runs afoul of the third Freeman factor."
2017 WL 657999, at *5.
This court added:
"The first and second factors are far more significant in determining whether the Kansas
Constitution has been violated, since they deal with the circumstances of the case and the
intent of the Kansas Legislature in fixing criminal penalties. How Kansas fares against
other states and their legislative approaches to sentencing criminals presents a less
compelling criterion for establishing a violation of § 9." 2017 WL 657999, at *5.
Although this court is not bound by decisions from other panels, the State
correctly points out that Cameron and Mossman expressed similar rationales for
28
concluding lifetime postrelease supervision sentences for offenders convicted of
statutorily defined sexually violent crimes are not disproportionate to the punishments
imposed in other jurisdictions for similar offenses. Cameron, 294 Kan. at 894-95 (citing
Mossman,
294 Kan. 901, Syl. ¶ 5). Because Sanders offers no compelling reason to
differentiate his case, this court finds that the district court correctly weighed the third
Freeman factor in the State's favor.
In sum, contrary to Sanders' points, the district court did not err in weighing the
three Freeman factors in this case and concluding that lifetime postrelease supervision
was not cruel and unusual punishment in violation of the Kansas Constitution.
V. The district court did not err in imposing Children's Advocacy Center assessment
fees for each crime.
Sanders next argues the district court erred in imposing four Children's Advocacy
Center (CAC) fees under K.S.A. 20-370(a), rather than a single $400 fee.
Resolving this issue requires statutory interpretation, which presents a question of
law subject to unlimited review. State v. Alvarez, 309 Kan. 203, 205,
432 P.3d 1015
(2019). The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be established. State v. Keys,
315 Kan. 690, 698,
510 P.3d 706 (2022). This court must first attempt to determine legislative intent though
the statutory language enacted, giving common words their ordinary meanings 315 Kan.
at 698. Unless the statute is ambiguous, courts need not resort to canons of statutory
construction or legislative history to determine the legislative intent. Betts, 316 Kan. at
198.
The relevant statute is K.S.A. 20-370(a), which provides "[o]n and after July 1,
2013, any defendant convicted of a crime under chapter 21 of the Kansas Statutes
29
Annotated, and amendments thereto, in which a minor is a victim, shall pay an
assessment fee in the amount of $400 to the clerk of the district court." Here, the district
court imposed a $1,600 CAC fee, so presumably the amount reflects a $400 fee for each
of Sanders' four convictions involving a minor victim.
The only Kansas appellate court that appears to have interpreted the statute thus
far is State v. McDuffie, No. 113,987, 2017 WL 2617648 (Kan. App. 2017) (unpublished
opinion). There, this court determined the language of the statute could be read two ways:
(1) as creating a "one-to-one ratio, where defendants convicted of one crime against a
minor are required to pay one fee, but defendants convicted of multiple crimes against
minors are required to pay the number of fees equal to the crimes committed against
minors"; or (2) "as requiring a defendant convicted of any unspecified number of crimes
against minors to pay just one assessment fee."
2017 WL 2617648, at *19. Thus, the
panel turned to legislative history to resolve the ambiguity and concluded the Legislature
"intended to create a one-to-one crime-to-fee ratio requiring defendants to pay a CACF
assessment fee for each crime they are convicted of committing against a minor."
2017
WL 2617648, at *19.
Both Sanders and the McDuffie panel rest their arguments on the words "a" crime
and "an" assessment, focusing on the use of indefinite articles. Although we reach the
same ultimate conclusion, we focus on the definition of the words used. After all, the first
rule of statutory interpretation requires us to first attempt to ascertain legislative intent
through the statutory language enacted, giving common words their ordinary meanings.
Betts, 316 Kan. at 198.
The issue of whether fees are assessed per charge, per crime, per case or per traffic
citation is an issue upon which the Legislature has been consistent and clear. So how are
those words defined and how have they been used in similar statutes?
30
A crime is defined in Kansas statutes as "an act or omission defined by law and for
which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment
and fine, is authorized or, in the case of a traffic infraction or a cigarette or tobacco
infraction, a fine is authorized." K.S.A. 21-5102. Likewise, Black's Law Dictionary
defines a "crime" as a singular act or "[a]n act that the law makes punishable." Black's
Law Dictionary 466 (12th ed. 2024).
The term "charge" is not specifically defined by statute, but it is defined as it
relates to the definition of a complaint, information, or indictment as "a plain and concise
written statement of the essential facts constituting the crime charged." K.S.A. 22-3201.
Black's Law Dictionary defines a charge as "[a] formal accusation of an offense as a
preliminary step to prosecution." Black's Law Dictionary 291 (12th ed. 2024).
The term "count" is also not defined by statute, but in common legal usage it
means "[t]he part of a charging instrument alleging that the suspect has committed a
distinct offense." Black's Law Dictionary 441 (12th ed. 2024). And finally, an "offense"
is defined as "[a] violation of the law, a crime." Black's Law Dictionary 1296 (12th ed.
2024).
"The terms 'crime,' 'offense,' and 'criminal offense' are all said to be synonymous,
and ordinarily used interchangeably. " 22 C.J.S., Criminal Law § 3. So the terms crime,
charge, count, and offense refer to a singular event.
On the other hand, the term "case" refers to a civil or criminal action or
proceeding. Black's Law Dictionary 266 (12th ed. 2024). When we refer to a case, we
refer to a singular court action which may contain multiple charges or crimes.
31
So we turn to other statutes in which these terms are used as applied to the
assessment of fees.
• The best example of similar language is contained in K.S.A. 8-2110(c).
"[W]hen the district or municipal court notifies the division of vehicles of a failure to
comply with a traffic citation pursuant to subsection (b), the court shall assess a
reinstatement fee of $100 for each charge on which the person failed to make satisfaction
regardless of the disposition of the charge for which such citation was originally issued
and regardless of any application for restricted driving privileges." (Emphasis added.)
At least since 1985, K.S.A. 8-2110(c) has provided that driver's license
reinstatement fees were assessed per charge when a driver failed to comply with a charge
contained in a traffic citation (even though the amount steadily increased). See K.S.A.
1985 Supp. 8-2110(c).
But effective January 1, 2025, the statute has been amended to
"[W]hen the district or municipal court notifies the division of vehicles of a failure to
comply with a traffic citation pursuant to subsection (b), the court shall assess a
reinstatement fee of $100." L. 2024, ch. 101, § 2 (S.B. 500).
The Legislative Summary for S.B. 500 (2024) states:
"The bill limits reinstatement fees assessed under continuing law following failure to
comply to a single fee of $100, replacing the requirement that imposes a separate $100
reinstatement fee for each charge associated with the citation with which the individual
did not comply, regardless of the disposition of the charge."
The use of the term "traffic citation" in the newly adopted statute is significant. A
traffic citation is a charging document that lists the offenses that are being charged.
32
K.S.A. 8-2106(b). So failure to comply with a traffic citation would include all the
charges contained in that citation. It is the failure to comply with the citation (not the
individual charges) which results in the assessment of a fee in the amended provision.
The language is clear and denotes a change in the language of the statute.
• Under K.S.A. 28-172a, regarding docket fees:
"(c) If a conviction is on more than one count, the docket fee shall be the highest
one applicable to any one of the counts. The prosecuting witness or defendant, if assessed
the costs, shall pay only one fee. Multiple defendants shall each pay one fee." (Emphasis
added.)
• Under K.S.A. 2023 Supp. 32-1049a, regarding failure to comply with a
wildlife and parks citation:
"(d) Except as provided in subsection (e), when the district court notifies the
department of a failure to comply with a wildlife and parks citation or failure to comply
with a sentence of the district court imposed on violation of a wildlife and parks law or
rule and regulation, the court shall assess a reinstatement fee of $50 for each charge or
sentence on which the person failed to make satisfaction, regardless of the disposition of
the charge for which such citation was originally issued." (Emphasis added.)
• Under K.S.A 28-176(a):
"The court shall order any person convicted . . . of a misdemeanor or felony contained in
chapters 21, 41 or 65 of the Kansas Statutes Annotated, and amendments thereto, . . . to
pay a separate court cost of $400 for every individual offense if forensic science or
laboratory services, forensic computer examination services or forensic audio and video
examination services are provided, in connection with the investigation." (Emphasis
added.)
33
See State v. Goeller, 276 Kan. 578, 584,
77 P.3d 1272, 1276 (2003), overruled on
other grounds by State v. Dickey,
301 Kan. 1018,
350 P.3d 1054 (2015) ("The phrase 'for
each offense' is clear; 'each offense' means each count on which Goeller was convicted. It
matters not that multiple offenses were charged in one case.").
Keeping this definitional framework in mind, the statute at issue here, K.S.A. 20-
370, reads as follows:
"(a) On and after July 1, 2013, any defendant convicted of a crime under chapter
21 of the Kansas Statutes Annotated, and amendments thereto, in which a minor is a
victim, shall pay an assessment fee in the amount of $400 to the clerk of the district
court." (Emphasis added.)
The statute specifies "a crime," which is a singular event, as is "a charge." It does not use
the term per case or per complaint or per traffic citation. As a result, we hold that K.S.A.
20-370(a) requires a defendant convicted of a crime against a minor victim to pay an
assessment fee for each crime committed against a minor. Thus, the district court did not
err in imposing an assessment fee for each of the four crimes Sanders committed against
Doe.
VI. The parties agree that the district court erred in imposing a higher witness
mileage fee after sentencing.
For his final issue, Sanders argues the district court erred when it entered a higher
witness mileage fee on the journal entry of judgment than the amount assessed at
sentencing. He seeks a nunc pro tunc order to correct the journal entry, which this court
can address for the first time on appeal. See State v. Edwards, 309 Kan. 830, 835,
440
P.3d 557 (2019) ("[A]ny journal entry variance from a judge's oral pronouncement during
sentencing is a clerical error that may be corrected at any time."). The State concedes that
34
the journal entry is incorrect and that the appropriate remedy is to remand with directions
to correct the journal entry. We agree and so order.
Affirmed in part, vacated in part, and remanded with directions.
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