author: Schroeder, J.:

text:
    STATE of Kansas, Appellee, v. Teri Lynn JOHNSON, Appellant.
    No. 118,380
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Clayton J. Perkins, of Capital Appellate Defender Office, for appellant.
    Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Green, P.J., Schroeder, J., and Stutzman, S.J.
   Schroeder, J.:

Teri Lynn Johnson appeals her jury convictions for unlawful sexual relations, sexual exploitation of a child, and promoting obscenity to a minor. She challenges the sufficiency of the evidence under each count and also claims K.S.A. 2015 Supp. 21-5512(a)(9) as applied is unconstitutionally vague as it fails to give notice of who is covered by the law and does not support her conviction for unlawful sexual relations. She also complains K.S.A. 2015 Supp. 21-5510(a)(1) requires super-sufficiency of the evidence, claiming it is an alternative means crime. The jury found Johnson guilty as charged stemming from her sexually oriented relationship with K.E., a minor. The record shows the court ordered K.E. to attend school where Johnson worked as a classroom paraprofessional. Their relationship began with flirtations in school. Johnson exchanged sexually explicit communications with K.E. on social media, resulting in Johnson ultimately going to K.E.'s home where they engaged in sexual intercourse. In a light most favorable to the State, the evidence presented supports Johnson's convictions. K.S.A. 2015 Supp. 21-5512(a)(9) is not unconstitutionally vague, and K.S.A. 2015 Supp. 21-5510(a)(1) is not an alternative means crime. We affirm.

FACTS

Johnson's job and duties

Johnson worked as a paraprofessional educator for U.S.D. 497. She was assigned as a paraeducator to the Douglas County Detention Center in what is commonly referred to as the Day School at the Juvenile Detention Center (JDC). Johnson worked at the Day School under the supervision of a licensed teacher. The essential functions of Johnson's position included adapting classroom activities, administering discipline, conferring with teachers, participating in team meetings to assist in evaluating student progress, implementing academic instruction, implementing behavior plans, and monitoring classrooms and students to ensure their safety and welfare. Paraeducators had supervision responsibilities and were also responsible for leading, guiding, and coordinating with others, including the students. If needed, Johnson would also "take over" and substitute for various teachers at the Day School.

K.E.'s enrollment and status as a student

K.E. was a student enrolled in the 12th grade in the Lawrence Public School system during the 2015-2016 school year. He was court ordered to attend school at the JDC that year.

The relationship between Johnson and K.E.

K.E. testified he found Johnson attractive and would joke with his friends about who would have sex with her first. He would flirt with Johnson a couple of times a week by staring at her breasts and deliberately getting caught by her to see how she would react.

A relationship developed and Johnson began communicating with K.E. outside of school using two social media applications: Facebook Messenger and Snapchat. Johnson told K.E. in their first exchange on Facebook she could be fired if their contacts were discovered. They switched to using Snapchat to send pictures, videos, and text messages to each other. K.E. testified they favored Snapchat because it deletes messages, pictures, and videos after a user views them. However, a Snapchat user can actively save images sent to the user. If saved by the recipient, the sender is sent a notification explaining the last sent item was saved by the recipient. K.E. testified he initially saved messages exchanged with Johnson through the chat function, but he "unsaved" them because he did not want anyone to see them.

K.E. testified they started sending pictures early in their communications and that "sex was already on my mind." He also testified that they discussed the age of consent in Kansas. Johnson was concerned because K.E. was not yet 18 years old. He searched on Google for the age of consent in Kansas, determined it was 16, and told Johnson he was over the "age of statutory rape."

Johnson went to K.E.'s house on the Saturday before Thanksgiving, and the two had sexual intercourse one time in his bedroom.

After having sex, K.E. and Johnson continued to communicate on Snapchat. They discussed their sexual encounter, having sex again, and mutually agreed to not tell anyone. Over the course of the relationship, Johnson sent K.E. approximately 20 pictures over Snapchat, and "all but like four or five" included pictures of her breasts. The rest included images of things such as lingerie and her vagina. K.E. also received pictures and at least two videos from Johnson over Facebook, one of her "rubbing her breasts and then playing with her vagina and [in] the other one she was in the shower playing with her vagina."

K.E. testified he requested most of the photographs and videos Johnson sent to him; however, Johnson also sent him videos and pictures he had not requested. He also testified prior to having sex, Johnson asked him for a picture of his penis and he sent it. He did not recall her asking him for a video of himself. At trial, K.E. identified a video of himself masturbating. He did not recall sending the video to Johnson. This video of K.E. masturbating, as well as other images of an erect penis-believed by police, in context, to be of K.E.-were located on Johnson's cellphone.

Johnson told K.E. throughout all of their communications to not save the content. K.E. testified "[i]f it involved naked pictures I saved it."

Report and criminal investigation

K.E. disclosed his relationship with Johnson to his father. His father told K.E.'s mother, and she contacted law enforcement. Law enforcement interviewed K.E. Then detectives went to the JDC and requested Johnson accompany them to the police department for an interview. Johnson did not testify at her trial, but the court admitted a video recording of her interview which was played for the jury. At the end of her police interview, Johnson provided a written statement, which was also admitted at her trial. Throughout the course of the investigation, the detectives reviewed Facebook and Snapchat records and phone reports downloaded from K.E.'s and Johnson's cellphones. These downloaded records included some restored information previously deleted by Johnson and K.E.

As the interview progressed, Johnson admitted she had exchanged photos with K.E., first claiming she had done so by accident. After the police told her they could retrieve even some deleted information, Johnson admitted she sent K.E. images. At first, she claimed she was not unclothed but then acknowledged she intentionally sent K.E. pictures of her breasts and vagina. She told police their contacts were exclusively messaging.

Later in the interview, she acknowledged she went to K.E.'s house but claimed they only talked. When asked if her DNA would be on K.E.'s bed, Johnson replied, "I guess you know?" Johnson then admitted she had sexual intercourse with K.E. with K.E.'s penis penetrating her vagina, and K.E. also performed oral sex on her.

Johnson also admitted she and K.E. exchanged videos involving both of them masturbating. Johnson acknowledged K.E. sent her a picture of his penis.

Trial and sentencing

The State charged Johnson with one count of unlawful sexual relations, a severity level 5 person felony; one count of sexual exploitation of a child, also a severity level 5 person felony; and one count of promoting obscenity to a minor, a class A nonperson misdemeanor. The jury convicted her on all three charges.

Johnson moved for a downward dispositional departure, or in the alternative, a downward durational departure. After hearing the evidence, a statement from K.E.'s mother, and arguments of counsel, the district court continued the sentencing to review the records and caselaw citations. In ruling on the motion, the district court stated the following:

• Johnson was in a position of authority;
• K.E. was a student at the school where Johnson was a paraprofessional educator;
• Johnson had engaged in a course of conduct;
• The relationship grew over time from inappropriate discussions in the classroom to secretive communications on Facebook and Snapchat;
• Johnson violated the educator/student fiduciary relationship; and
• There were insufficient compelling reasons to grant a departure.

Therefore, the district court denied Johnson's motion.

The district court then sentenced Johnson to the standard sentence of 32 months with the Department of Corrections for unlawful sexual relations, 32 months for sexual exploitation of a child, and 12 months for promoting obscenity to a minor, all to run concurrent to each other with 24 months of postrelease supervision. Finally Johnson was ordered to register under the Kansas Offender Registration Act for 25 years. ANALYSIS

Is the use of "other person in a position of authority" unconstitutionally vague as set out in K.S.A. 2015 Supp. 21-5512(a)(9) ?

K.S.A. 2015 Supp. 21-5512(a)(9) under these facts prohibits consensual sexual intercourse, lewd fondling or touching, or sodomy with a person who is not married to the offender when the offender is a teacher or other person in a position of authority employed at a school where the child is enrolled.

Johnson argues K.S.A. 2015 Supp. 21-5512(a)(9) is unconstitutionally vague when applying the term "other person in a position of authority." Whether a statute is unconstitutionally vague is a question of law, and this court's review is unlimited. This court must presume the constitutionality of a statute and resolve all doubts in favor of its validity. State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000).

Interpretation of a statute is also a question of law over which appellate courts have unlimited review. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 417 (2016). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent. State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016). When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony, if possible. State v. Keel , 302 Kan. 560, Syl. ¶ 7, 357 P.3d 251 (2015).

A. Preservation

Johnson acknowledges she raises this issue for the first time on appeal. Issues not raised before the trial court cannot be raised on appeal. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). Constitutional grounds for reversal asserted for the first time on appeal are also not properly before the appellate court for review. State v. Daniel , 307 Kan. 428, 430, 410 P.3d 877 (2018).

However, consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights, so we may address Johnson's claim. See State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014) ; see also State v. White , 53 Kan. App. 2d 44, 55, 384 P.3d 13 (2016), rev. denied 306 Kan. 1331 (2017).

B. Analysis

Johnson argues that K.S.A. 2015 Supp. 21-5512(a)(9) requires people of common intelligence to guess at its meaning of "other person in a position of authority," and so it "is unconstitutionally vague in violation of due process." The State, however, contends that there is no ambiguity regarding the word "authority," and the statute clearly elucidates which people are "embraced by the phrase at issue in this case." The State's argument is persuasive.

Courts use a two-prong inquiry to determine if a statute is unconstitutionally vague. City of Lincoln Center v. Farmway Co-Op, Inc. , 298 Kan. 540, 545, 316 P.3d 707 (2013) ; White v. Shipman , 54 Kan. App. 2d 84, 94-95, 396 P.3d 1250 (2017). First, courts determine whether the statute conveys a sufficiently definite warning and fair notice of the prohibited conduct in light of common understanding and practice. Second, courts determine whether the statute's terms are precise enough to guard against arbitrary and discriminatory enforcement. City of Lincoln Center , 298 Kan. at 545, 316 P.3d 707. A statute is unconstitutionally vague if it " 'forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.' [Citations omitted.]." White , 53 Kan. App. 2d at 54, 384 P.3d 13. Courts can resolve void-for-vagueness arguments based on the language of the statute alone. See, e.g., State v. Teter , 47 Kan. App. 2d 608, 612-15, 278 P.3d 968 (2012) (finding statute regulating the purchase of pseudoephedrine and ephedrine was not unconstitutionally vague based solely on the language of the statute).

Again, the conduct prohibited by K.S.A. 2015 Supp. 21-5512(a) is consensual sexual intercourse, lewd fondling or touching, or sodomy with a person who is not married to the offender. This conduct is prohibited if the offender is a teacher or "other person in a position of authority " employed at the school where the child is enrolled. (Emphasis added.) K.S.A. 2015 Supp. 21-5512(a)(9). "Teacher" is defined, in part, to include any other professional employee at a public school offering any of grades kindergarten through 12. K.S.A. 2015 Supp. 21-5512(d)(9).

Next, Johnson contends the law criminalizes otherwise lawful conduct based upon an offender's professional status, so "determining what professions are subject to the law is key." However, in failing to read the statute in light of common understanding and practice, Johnson's interpretation of the statute makes unsupported legal conclusions.

The purpose of the statute, read in context, is to prohibit sexual relations within a relationship in which there is an inherent power differential, e.g., employees at a correctional facility and inmates, parole officers and parolees, law enforcement officers and those jailed, foster parents and their foster children, etc. See K.S.A. 2015 Supp. 21-5512(a). The statute is not about "qualifying profession[s]" but preventing those in positions of authority from using their authority to coerce sex from those entrusted to their care.

The term "authority" is understood by persons of common intelligence to mean "the power or right to give commands, enforce obedience, take action." Webster's New World College Dictionary 96 (5th ed. 2014). Contrary to Johnson's contention that a reference to a dictionary "presents disparate examples of what 'authority' could mean," all of her quoted examples reflect the ordinary meaning of the term. This is consistent with the purpose of the statute in context-prohibiting conduct whereby persons in positions of authority abuse their authority to engage in sexual relations with those entrusted to their care.

Johnson argues the phrase in question is an unconstitutionally vague "catchall clause." She cites to Johnson v. United States , 576 U.S. ----, 135 S. Ct. 2551, 192 L.Ed. 2d 569 (2015), in support of her argument. Her reliance on Johnson is misplaced. There, the United States Supreme Court specifically found the residual clause within the federal criminal statute at issue asked whether the crime " 'involves conduct ' " that presents too much risk of physical injury. In so finding, the Court held the indeterminacy of the "wide-ranging inquiry" denied fair notice to defendants and invited arbitrary enforcement by judges. 135 S. Ct. at 2557. Here, there is no need for a wide-ranging inquiry regarding prohibited conduct. The inquiry is a simple one: whether the school employee-Johnson-was in a position of authority.

Finally, Johnson claims the Legislature attempted to limit the statute's applicability to persons in certain professions at schools and so the statute does not apply to all school employees. Johnson then essentially claims the Legislature disregarded itself when it included the phrase "other person in a position of authority" in the statute: "the inclusion of a catchall phrase applying to other persons in a position of authority allows the arbitrary disregard of the limitations put in place by the legislature."

The statute, however, does not exclude the possibility it could apply to most, if not all, employees in a school. The test within the language of the statute is not an employee's title, but whether the employee was in a position of authority-a fact question. The State attempts to distinguish between school employees who have regular and direct contact with students in the context of the students' presence at the school-librarians, teaching assistants-and those whose primary work tasks do not require interactions with students.

In a dynamic and insulated environment such as a school where children are expected to be deferential to adults, interpreting the statute to mean it cannot apply to all employees is too narrow a reading. Even the broadest reading of the phrase at issue-other person in a position of authority-is precise enough to guard against arbitrary and discriminatory enforcement because it puts school employees on notice the statute could apply to them when acting in a position of authority.

The statute is not unconstitutionally vague and reasonably describes to all persons interacting with others what conduct a person of common intelligence would understand is prohibited. Having found the statute's use of "other person in a position of authority" is not unconstitutionally vague, we turn to address Johnson's claim the evidence presented was insufficient to support her convictions.

Was the evidence sufficient?

Next, Johnson claims the State presented insufficient evidence to support her convictions for unlawful sexual relations, sexual exploitation of a child, and promoting obscenity to a minor. However, Johnson designated only a fraction of the trial's evidence as part of her record on appeal.

The party claiming an error occurred has the burden of designating a record affirmatively showing prejudicial error. State v. Sisson , 302 Kan. 123, 128, 351 P.3d 1235 (2015). Without such a record, an appellate court presumes the action of the trial court was proper. State v. Bridges , 297 Kan. 989, 1001, 306 P.3d 244 (2013). Even with the limited record available, the record is sufficient to support Johnson's three convictions. We will address the sufficiency of the evidence for each crime separately. Additionally, we will address Johnson's argument that sexual exploitation of a child is an alternative means crime.

A. Unlawful sexual relations

Johnson contends the State did not present sufficient evidence to establish certain elements of the crime of unlawful sexual relations-specifically, whether she was in a position of authority and whether K.E. was a student enrolled at a school where she was employed. The State argues it presented sufficient evidence to support Johnson's conviction because she was in a position of authority as a paraeducator, and K.E. was a student in the Lawrence public schools required to attend the Day School at the JDC. The State's argument is more persuasive.

When sufficiency of the evidence is challenged in a criminal case, the standard of review is " 'whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.' [Citation omitted.]" State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

K.S.A. 2015 Supp. 21-5512(a)(9) defines unlawful sexual relations as engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy with a person who is not married to the offender if

"the offender is a teacher or other person in a position of authority and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is a student enrolled at the school where the offender is employed ." (Emphases added.)

Significantly, according to the statute, a "teacher" includes teachers, coaches, supervisors, principals, superintendents, and "any other professional employee in any public or private school offering any of grades kindergarten through 12 ." (Emphases added.) K.S.A. 2015 Supp. 21-5512(d)(9).

1. Johnson was in a position of authority.

To the degree analysis of this issue requires statutory interpretation, that is a question of law and this court's review is unlimited. Collins , 303 Kan. at 473-74, 362 P.3d 1098. The most fundamental rule of statutory construction is the intent of the Legislature governs if that intent can be ascertained. Jordan , 303 Kan. at 1019, 370 P.3d 417.

An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute not readily found in its words. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the Legislature's intent. Barlow , 303 Kan. at 813, 368 P.3d 331.

Thus, the State had to prove Johnson was a "person in a position of authority." As a paraprofessional educator at the JDC, Johnson contends the State failed to establish this element. She argues she was not in a position of authority "either in terms of her job working for Lawrence Public Schools or over K.E. in particular." She claims as a paraprofessional educator, her primary duty "was working with children requiring special education." She also claims because she worked under the supervision of a licensed teacher, it was the teacher who was the "person in a position of authority," not her.

Johnson's arguments on their face are not realistic. Even if Johnson's primary duty was working with children requiring special education, she does not explain how her primary duty did not reflect authority or how it otherwise negated any authority she had by virtue of her other job responsibilities. Further, her argument regarding the licensed teacher's authority suggests no one other than the licensed teacher had any authority in that classroom. Johnson's argument fails to acknowledge positions of authority can be shared.

Johnson also fails to cite to any evidence in the record to support her arguments. Issues not briefed are deemed waived or abandoned. State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018). A point raised incidentally in a brief and not argued therein is also deemed abandoned. State v. Sprague , 303 Kan. 418, 425, 362 P.3d 828 (2015). Also, failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Pewenofkit , 307 Kan. 730, 731, 415 P.3d 398 (2018).

The plain language of the statute addresses Johnson's role at the school as a person in a position of authority. The evidence at trial regarding Johnson's authority in the classroom was uncontested. The record reflects:

• Her job description and self-acknowledged responsibilities;
• K.E.'s perception of her authority;
• Her exercise of that authority in the classroom by sending students, including K.E., to "cool downs";
• Her assigning and grading work; and
• Her interactions with other staff members.

When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony, if possible. Keel , 302 Kan. 560, Syl. ¶ 7, 357 P.3d 251. Ultimately, the courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation. State v. Frierson , 298 Kan. 1005, 1013, 319 P.3d 515 (2014).

Reading subparagraph (a)(9) in pari materia with the rest of the statute, we see other subsections of K.S.A. 2015 Supp. 21-5512 similarly prohibit sexual conduct between department of corrections employees and inmates; parole officers and parolees; and workers, volunteers, "or other person[s] in a position of authority" in a family foster home and their foster children aged 16 years or older. See K.S.A. 2015 Supp. 21-5512(a)(1), (2), and (8). When read in its entirety, it is clear the intent of this statute is to prohibit sexual conduct of certain persons who have authority over other persons where the ability to freely consent is questionable. See State v. Edwards , 48 Kan. App. 2d 264, 269, 288 P.3d 494 (2012).

We have previously defined a person in a position of authority as one who has "the power or right to give commands, enforce obedience, take action" (Webster's New World College Dictionary 96), all of which are examples of what Johnson exercised in her role as a paraeducator in the classroom at the JDC. We find the Legislature intended for persons like Johnson to be held to the same standards as teachers when it comes to preventing sexual relations with the students. Johnson, while employed at the JDC, was a "person in a position of authority" as contemplated by K.S.A. 2015 Supp. 21-5512(a)(9). To find otherwise would result in an absurd and unreasonable interpretation of the statute. See Frierson , 298 Kan. at 1013, 319 P.3d 515.

2. K.E. was a student.

Next, Johnson contends the State failed to prove K.E. was "a student enrolled at the school where the offender was employed" and argues K.E. was not a student at the school where she was employed. Rather, she claims he was court ordered to attend "educational training at a juvenile detention facility," and she was "not employed at that school" but by Lawrence Public Schools and assigned to the JDC. Johnson argues the Day School was not a school and K.E. was not a student for purposes of determining school district enrollment. Johnson's argument lacks logic.

Giving common words their ordinary meaning, "school" is defined as "[a]n institution of learning and education, esp. for children." Black's Law Dictionary 1546 (10th ed. 2014). A student is "a person who studies, or investigates ... [or] is enrolled for study at a school." Webster's New World College Dictionary 1441 (5th ed. 2014). The record reflects K.E. was enrolled in Lawrence Public Schools for the 2015-2016 academic year as a 12th grader and assigned by the school district to attend the JDC under a court order.

In sum, the evidence available in the record reflects K.E. was a student enrolled at the JDC school where Johnson was assigned to work. To find otherwise would lead to an absurd and unreasonable application of the statutes. See Frierson , 298 Kan. at 1013, 319 P.3d 515.

Johnson's real argument about her conviction for unlawful sexual relations amounts to a request for reweighing of the evidence, which this court does not do. See Chandler , 307 Kan. at 668, 414 P.3d 713. The record before us reflects Johnson was employed at the JDC school and was in a "position of authority" to manage the classroom-including K.E. who was a 17-year-old 12th grade student court ordered to attend the JDC school.

B. Sexual exploitation of a child

Here, Johnson contends the evidence was insufficient to convict her of sexual exploitation of a child because the State did not prove she enticed K.E. to engage in sexually explicit conduct for profit. She argues sexual exploitation of a child is an alternative means crime, which required the State to prove all of the listed means of committing the crime beyond a reasonable doubt. The State argues there is no alternative means issue presented in this case. Accordingly, the State was not required to prove Johnson promoted K.E.'s sexually explicit performance "both for profit and to arouse sexual desires." (Emphasis added.) The State has the better argument.

Sufficiency of the evidence is reviewed to determine whether in the context of all the evidence and in a light most favorable to the State, this court is convinced the jury could have found the defendant guilty beyond a reasonable doubt. This court determines this without reweighing the evidence, resolving evidentiary conflicts, or making witness credibility determinations. Chandler , 307 Kan. at 668, 414 P.3d 713.

Here, Johnson does not argue the evidence was insufficient to prove she promoted K.E.'s sexually explicit performance to arouse sexual desires. See K.S.A. 2015 Supp. 21-5510(a)(1), (d)(2)(B). Again, issues not briefed are deemed waived or abandoned. Arnett , 307 Kan. at 650, 413 P.3d 787. Likewise, a point raised incidentally in a brief and not argued therein is also deemed abandoned. Sprague , 303 Kan. at 425, 362 P.3d 828.

Consequently, Johnson asks us to determine whether the Kansas statute prohibiting sexual exploitation of a child is an alternative means statute. " 'Whether a statute creates alternative means of committing a crime is a matter of statutory interpretation and construction and is a question of law subject to de novo review on appeal.' [Citation omitted.]" State v. Castleberry , 301 Kan. 170, 181, 339 P.3d 795 (2014) ; State v. Cottrell , 53 Kan. App. 2d 425, 433, 390 P.3d 44, rev. granted 306 Kan. 1322 (2017).

The alternative-means doctrine is defined as "[t]he principle that when a crime might have been committed in more than one way, the jury must be unanimous on the defendant's guilt but need not be unanimous on the possible different methods of committing the crime, as long as each possible method is supported by substantial evidence ." (Emphasis added.) Black's Law Dictionary 95 (10th ed. 2014). The Kansas Supreme Court has applied a "super-sufficiency" requirement for evidence in alternative means cases:

"When a single criminal offense may be committed by alternative means, jury unanimity is not required as to the means by which the crime was committed, as long as substantial evidence supports each alternative means set out in the jury instructions. If the evidence is insufficient on one or more of the means on which the jury has been instructed, the conviction must be reversed." State v. Brown , 295 Kan. 181, 184, 284 P.3d 977 (2012).

"When criminal statutes create two or more distinct ways of committing an offense, those ways reflect alternative means. Other criminal statutes establish only one way to commit an offense, although they may use synonymous or redundant terms to define the prohibited conduct." State v. Schreiner , 46 Kan. App. 2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011). In this case, the record shows Johnson enticed K.E. to create and send to her sexually explicit images and videos.

The purpose of the alternative-means doctrine is generally to avoid concerns regarding jury unanimity. See State v. Wright , 290 Kan. 194, 206, 224 P.3d 1159 (2010) ; State v. Timley , 255 Kan. 286, 289-90, 875 P.2d 242 (1994) ; see also Khan v. State , 204 P.3d 1036, 1042 (Alaska Ct. App. 2009) (when a defendant is charged with a crime under more than one theory , the jurors need not unanimously agree on the theory that serves as the basis for the defendant's conviction, but the jurors must unanimously agree that the defendant committed the wrongful deed).

"[A] statute-and any [jury] instruction that incorporates it-must list distinct alternatives for a material element of the crime , not merely describe a material element or a factual circumstance that would prove the crime, in order to qualify for an alternative means analysis and application of the super-sufficiency requirement." (Emphasis added.) Brown , 295 Kan. at 184, 284 P.3d 977.

Our Supreme Court established the framework for alternative means analysis in Brown , instructing us to look at the plain language of the statute first to determine whether the Legislature intended to create alternative means of committing the crime. 295 Kan. at 193, 284 P.3d 977.

Johnson was prosecuted for violating K.S.A. 2015 Supp. 21-5510(a)(1), which provides sexual exploitation of a child is: Enticing a child under the age of 18 to engage in sexually explicit conduct with the intent to promote any performance.

Johnson argues the statutory definition of "promote" creates alternative means. See K.S.A. 2015 Supp. 21-5510(d)(2). Under K.S.A. 2015 Supp. 21-5510(d)(2), "promoting" is defined as:

"[P]rocuring, transmitting, distributing, circulating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising:
(A) For pecuniary profit; or (B) with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the offender or any other person." (Emphasis added.)

Johnson argues the jury in this case was "presented with alternative means for committing the crime of [sexual exploitation of a child] through the presentation of two alternative mens rea requiring the crime to be committed: (1) [for] pecuniary profit, or (2) with intent to appeal to the prurient interest of the defendant or another person." She suggests the Legislature signaled its intent to create alternative means here through the structure of the statute by separating alternatives into distinct subsections or "elements" of the statute, i.e., (d)(2)(A) and (d)(2)(B), which require different mens rea.

However, the Kansas Supreme Court has held that an "or" does not necessarily equal an alternative means. See Brown , 295 Kan. at 192, 284 P.3d 977. The United States Supreme Court recognized in Schad v. Arizona , 501 U.S. 624, 638, 111 S. Ct. 2491, 115 L.Ed. 2d. 555 (1991) (plurality opinion): "Decisions about what facts are material and what are immaterial, or ... what 'fact[s] [are] necessary to constitute the crime,' and therefore must be proved individually, and what facts are mere means, represent value choices more appropriately made in the first instance by a legislature than by a court. [Citation omitted.]"

In examining legislative intent, a court must determine for each statute what the Legislature's use of a disjunctive "or" is intended to accomplish. "Is it to list alternative distinct, material elements of a crime-that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime?" Brown , 295 Kan. at 194, 284 P.3d 977. The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Again, however, merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction. 295 Kan. at 194, 284 P.3d 977 (citing Wright, 290 Kan. at 201, 224 P.3d 1159 ).

The Legislature specified the material elements in K.S.A. 2015 Supp. 21-5510 which the State was required to establish to prove sexual exploitation of a child under subparagraph (a)(1): (i) enticing K.E., (ii) a child under 18, (iii) to engage in sexually explicit conduct, (iv) with intent, (v) to promote any performance. Here, jury Instruction No. 6 read in its entirety:

"The defendant is charged with sexual exploitation of a child. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant, with the intent to promote a performance, enticed K.E. to engage in sexually explicit conduct.
"2. K.E. was less than 18 years old at the time the conduct occurred. The State need not prove that the defendant [knew] the child's age.
"3. This act occurred on or about the 1st day of October, 2015 to the 10th day of December, 2015, in Douglas County, Kansas.
"For purposes of this instruction, 'Promoting' means procuring, transmitting, distributing, circulating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting, or advertising, for pecuniary profit or with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the defendant or another person .
"For purposes of this instruction, 'performance' means any film, photograph, negative, slide, book, magazine or other printed or visual medium, any audio tape recording or any photocopy, video, tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk, or any play or other live presentation.
"For purposes of this instruction, 'Sexually explicit conduct' means actual or simulated: Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex, masturbation, sadomasochistic abuse with the intent of sexual stimulation; or lewd exhibition of the genitals, female breasts or pubic area of any person.
"The State must prove the defendant committed the crime intentionally. A defendant acts intentionally when it is the defendant's desire or conscious objective to cause the result complained about by the State.
"The State claims distinct multiple acts which each could separately constitute the crime of sexual exploitation of a child. In order for the defendant to be found guilty of sexual exploitation of a child, you must unanimously agree upon the same underlying act." (Emphasis added.)

The jury instruction signaled the material elements with paragraph numbers 1 through 3. The instruction provided all of the relevant statutory definitions under subsection (d), but did not mirror the statute by dividing the motives included under the definition in subparagraph (d)(2). See K.S.A. 2015 Supp. 21-5510(d)(1)-(3).

Additionally, the jury instruction informed the jurors in order to convict Johnson of sexual exploitation of a child, they had to find she acted intentionally and then defined intentional. Johnson argues there were two "mens rea" found in the statute under the definition of "promoting" and suggests the State had to offer evidence of those two possible intentions-pecuniary profit and sexual gratification-behind her enticing K.E. to engage in sexually explicit conduct, record it on video or in a photograph, and then send it to her.

Mens rea is defined as: "The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime." Black's Law Dictionary 1134 (10th ed. 2014). Essentially, the term means a defendant's intention. The jury instruction signaled one intention-the jury had to determine whether Johnson's intention was to entice K.E. into a sexually explicit performance. The evidence indicated the sexually explicit performance Johnson elicited K.E. to engage in was nude photographs of his genitalia and a video of him masturbating. The evidence consistently demonstrated Johnson did this to arouse or gratify her or K.E.'s sexual desires.

Definitional language that merely elaborates on elements rather than defining the subject crime signals secondary matters-options within means-that do not raise an alternative means issue. Brown , 295 Kan. at 198-200, 284 P.3d 977. A plain reading of the statute reflects the Legislature used synonymous or redundant terms to define sexual exploitation of a child under subparagraph (a)(1) regarding the various ways in which a defendant can entice a child under the age of 18 to engage in sexually explicit conduct, and to further define "sexually explicit conduct," "promoting," and "performance" under subsection (d). The State was required to prove the elements in (a)(1) individually, not every synonymous term under the statute's subparagraph regarding certain definitions-several of which are divided by the word "or." The statute requires only the State alleges and proves a defendant enticed a child under the age of 18 to engage in sexually explicit conduct with the intent to promote such a performance of sexually explicit conduct by that child.

The essential element of the offense the State must prove is the defendant, e.g., persuaded, induced, enticed, or coerced the child to engage in the sexually explicit conduct.

How Johnson ultimately intended to use K.E.'s enticed sexually explicit performance was not a material element of the crime. In other words, what Johnson did (sold or used for sexual gratification) with the product of what she did is a demonstration or manifestation of her intention to elicit the performance; it is not a material element of the crime itself.

Further, there is no concern here regarding jury unanimity. The record demonstrates the State did not allege in the complaint or information Johnson exploited K.E. sexually for pecuniary profit. It did not present any evidence at trial or argue to the jury Johnson sexually exploited K.E. for pecuniary profit. There is no question the jury found Johnson sexually exploited K.E. for sexual gratification. The evidence established Johnson enticed K.E.'s sexually explicit conduct to display it with the intent to arouse or gratify her or his sexual desire. Subparagraph (d)(2)(B) merely describes a factual circumstance that serves to prove Johnson's intention to commit the crime; it does not create alternative means.

Under the facts here, the offense was committed in one way: enticing K.E. to engage in sexually explicit conduct on video or in photographs. Johnson then used the product of his performance for her or K.E.'s sexual gratification. This demonstrated her intent to entice the performance. The subpoints in the definitional subparagraph describing options within the means of "promoting" do not create an alternative means crime requiring super-sufficiency of the evidence.

C. Promoting obscenity to a minor

As her final issue, Johnson contends the evidence was insufficient to convict her of promoting obscenity to a minor. She argues for the statute to apply, she had to transmit physical things, rather than the digital photographs and videos transmitted in her case. The State argues Johnson's reading of the statute and its definition of the word "tangible" leads to an absurd result. The State's argument is persuasive.

As stated earlier, sufficiency of the evidence is reviewed to determine whether in the context of all the evidence and in a light most favorable to the State, this court is convinced the jury could have found the defendant guilty beyond a reasonable doubt. This court determines this without reweighing the evidence, resolving evidentiary conflicts, or making witness credibility determinations. Chandler , 307 Kan. at 668, 414 P.3d 713. To the degree analysis of this issue requires statutory interpretation, it is a question of law subject to de novo review. Collins , 303 Kan. at 473-74, 362 P.3d 1098.

Promoting obscenity to a minor arises under K.S.A. 2015 Supp. 21-6401(a)(1) and (b), which define "promoting obscenity" as recklessly "[m]anufacturing, mailing, transmitting , publishing, distributing, presenting, exhibiting or advertising any obscene material ... where a recipient of the obscene material ... is a child under the age of 18 years." (Emphasis added.) Johnson's sole argument here is the State failed to prove several photographs of her breasts and vagina and the two masturbation videos she sent to K.E. were "material," as defined by the statute. She does not challenge the jury's finding the material was obscene or transmitted but only that it was "material."

Under K.S.A. 2015 Supp. 21-6401(f)(2), "material" is defined as "any tangible thing which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or other manner." (Emphasis added.) Johnson argues the statute does not apply to digital photographs or videos because they are not "tangible." "The files simply do not exist in a physical format." In contrast, the State provides several definitions of "tangible," many of which do not include the requirement of a three-dimensional physicality or touchability. Again, we find the State's argument convincing.

The most fundamental rule of statutory construction is the intent of the Legislature governs if that intent can be ascertained. Jordan , 303 Kan. at 1019, 370 P.3d 417. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute not readily found in its words. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the Legislature's intent. Barlow , 303 Kan. at 813, 368 P.3d 331.

Significantly, while the statute defines "material" to include something "tangible," it does not define "tangible." The jury was not instructed beyond the word "material," which was part of an element of the crime the State was required to prove.

It is relevant to note that during deliberations, the jury presented the trial court with a question regarding an undefined word in jury Instruction 6 asking the court for a definition of the word "enticed." The parties and the court agreed they could not answer questions regarding definitions not already provided. Johnson's defense counsel also requested the court admonish the jurors to not use their phones to look up the definition. The district court stated its response to the jurors would be: " 'The court cannot provide the jury with definitions beyond those already provided in the instructions.' " When the jury came in, the district judge read that response to its question and then reminded the jurors not to use their phones to look up the definition.

The jury heard the evidence and was instructed on the elements the State had to prove. After being so instructed, the jury found Johnson guilty of promoting obscenity to a minor. Juries are presumed to have followed the instructions given by the district court. State v. Kettler , 299 Kan. 448, 478, 325 P.3d 1075 (2014) ; State v. Fulton , 269 Kan. 835, 842, 9 P.3d 18 (2000). Johnson does not make any arguments on appeal to rebut this presumption.

Since "tangible" was not defined for the jury, whether the images and videos in evidence were "material" as contemplated by the statute was a question for the jury. Appellate courts do not reweigh evidence or resolve evidentiary conflicts. Chandler , 307 Kan. at 668, 414 P.3d 713.

Additionally, canons of statutory construction support Johnson's conviction for promoting obscenity to a minor. When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. Keel , 302 Kan. 560, Syl. ¶ 7, 357 P.3d 251. Ultimately, the courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation. Frierson , 298 Kan. at 1013, 319 P.3d 515.

Here, the jury was instructed the State had to prove Johnson "transmitted" the obscene material. While the statute defined "material," it did not define the aspect of the element "transmit." However, the word can commonly be understood to mean "to communicate (news, etc.)," or "to send out (radio or television broadcasts, etc.) by electromagnetic waves-vi . to send out radio or television signals." Webster's New World College Dictionary 1540 (5th ed. 2014). Giving common words their ordinary meaning, the word "transmit" is indicative of electronically stored images or digital media. Johnson does not explain how one "transmits" physical photographs and videos.

Considering the various provisions of K.S.A. 2015 Supp. 21-6401 in pari materia , we find the Legislature intended "material" to include digital media, which is shared by sending or transmitting it to another person. The intent in sending the material to someone else is to share it with another person and for that person to see it. To construe the statute otherwise would lead to an unreasonable and absurd result.

When we review the record as submitted and in a light most favorable to the State, we are convinced the jury reasonably found Johnson guilty beyond a reasonable doubt of unlawful sexual relations, sexual exploitation of a child, and promoting obscenity to a minor by transmitting obscene digital images to K.E.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Dustin Elie SCHULZE, Appellant.
    No. 119,184
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
    Brock R. Abbey, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
    Before Schroeder, P.J., Green and Powell, JJ.
   Schroeder, J.:

Dustin E. Schulze appeals the district court's decision to approve the State's motion to correct an illegal sentence, which the State filed after discovering his original presentence investigation (PSI) report failed to contain all of his prior convictions. The district court originally sentenced Schulze based on a criminal history score of C. The amended PSI report had five more convictions, two of which were person misdemeanors. The new PSI report changed Schulze's criminal history score from a C to a B. The district court found it needed to resentence Schulze based on his new criminal history score. Schulze now argues his sentence was not illegal and the district court had no authority under these facts to resentence him. We agree with Schulze, finding his original sentence controls since it was based on the criminal history the State proved at the time of his original sentencing. Reversed and remanded with directions.

FACTS

After pleading no contest to felony theft, Schulze appeared for sentencing. His PSI report showed he had a criminal history score of C, listing 18 prior convictions. Schulze agreed with the PSI report and its finding he had a criminal history score of C, resulting in a sentence of presumptive probation. K.S.A. 2016 Supp. 21-6804(a). The State recommended Schulze be sentenced to prison, based on his criminal history score and the fact this crime occurred while he was on felony bond. The district court disagreed with the State's recommendation and sentenced Schulze to 12 months' imprisonment, suspended to serve 12 months on probation, to run consecutive to a 40-month prison sentence he was already serving in another case.

Shortly after the original sentencing, court services provided an amended PSI report to the district court, listing 23 prior convictions, including two person misdemeanors not included in the original report. The amended PSI combined the two newly discovered person misdemeanors with a person misdemeanor included in his original PSI report to aggregate the three person misdemeanors to a person felony. With the new aggregation, Schulze's criminal history score increased from a C to a B. K.S.A. 2017 Supp. 21-6811(a).

The district court informed the parties that court services had been given the wrong sentencing date and had not updated Schulze's PSI report in time for his original sentencing. The State then moved to correct an illegal sentence under K.S.A. 2017 Supp. 22-3504. It argued Schulze's sentence was illegal because it was based on a criminal history score that did not include all his prior convictions.

At the hearing, the district court granted the State's motion. The court held Schulze's sentence violated an applicable statutory provision requiring all of a defendant's prior convictions to be counted separately in his criminal history. The court also held,

"[T]he case law in Kansas is clear that the Court can correct an illegal sentence at any time, and that routinely happens, even without objection at the time of sentencing on appeal when it is in another light. For example, if a criminal history classification was improperly scored, no objection was made at sentencing, to the detriment of the defendant, the appellate courts simply send that back down for the district court to correct. This is the opposite of that situation in which the original criminal history omitted two misdemeanor offenses from a case which should have been included in the criminal history."

Based on the amended PSI report, Schulze's sentence changed to a presumptive prison sentence with a range of 13 to 15 months. K.S.A. 2016 Supp. 21-6804(a). Schulze moved for a dispositional departure. The district court granted the motion and resentenced Schulze to 14 months' imprisonment, but granted 12 months' probation to once again run consecutive to the other 40 month prison sentence he was serving in another case.

ANALYSIS

On appeal, Schulze contends his original sentence was legal and the district court erred in resentencing him. He points out the State failed to object to his criminal history at his original sentencing hearing. Because the State failed to challenge the existence or nonexistence of his prior convictions at the original sentencing, he argues the State does not get a second chance.

The State responds by arguing Schulze's original sentence was illegal because it was based on an inaccurate criminal history. The State further contends parties may not stipulate to an illegal sentence, and because courts may correct an illegal sentence at any time, the State asserts the district court did not err in resentencing Schulze.

Standard of review

Whether a sentence is illegal within the meaning of K.S.A. 2018 Supp. 22-3504 is a question of law over which the appellate court has unlimited review. State v. Jamerson , 309 Kan. 211, 214, 433 P.3d 698 (2019). "A sentence is illegal under K.S.A. 22-3504 when: (1) it is imposed by a court without jurisdiction; (2) it does not conform to the applicable statutory provisions, either in character or punishment; or (3) it is ambiguous with respect to the time and manner in which it is to be served. [Citation omitted.]" State v. Hayes , 307 Kan. 537, 538, 411 P.3d 1225 (2018).

The sentence when imposed was legal.

The district court found Schulze's sentence was illegal because it did not conform to K.S.A. 2017 Supp. 21-6810(c) and (d)(6). K.S.A. 2017 Supp. 21-6810(c) states "Except as otherwise provided, all convictions ... shall be counted separately in the offender's criminal history." K.S.A. 2017 Supp. 21-6810(d)(6) states "All person misdemeanors ... shall be considered and scored" when determining a defendant's criminal history score. The district court held Schulze's original criminal history score did not conform to these provisions because it did not include all of his prior person misdemeanors.

Even so, Schulze argues his original sentence was not illegal because the State did not object to his criminal history. He compares his case to State v. Oliver , 30 Kan. App. 2d 665, 46 P.3d 36 (2002). There, the district court found the defendant had a criminal history score of C. The State did not object to the criminal history score and told the court the defendant's municipal convictions could not be aggregated. The State later moved to correct an illegal sentence, arguing some of the defendant's municipal convictions should have been aggregated, resulting in a criminal history score of B. The district court granted the State's motion and resentenced the defendant.

On appeal, this court vacated the defendant's sentence and remanded to reinstate the original sentence. 30 Kan. App. 2d at 667-68, 46 P.3d 36. The Oliver court held: " 'When the State agrees to a defendant's criminal history, even if the criminal history is incorrect, the sentence imposed based on that criminal history is not illegal because it is a proper sentence for the agreed upon grid block.' " 30 Kan. App. 2d at 667, 46 P.3d 36 (quoting Neal v. State , 25 Kan. App. 2d 705, 705-06, 971 P.2d 748 [1998] ). The Oliver court also found:

"This court has repeatedly held that a sentence within the wrong sentencing grid block under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., is not an illegal sentence when the criminal history category was stipulated to by the parties. Neal , 25 Kan. App. 2d at 705 [971 P.2d 748] ; Thompson v. State , 25 Kan. App. 2d 659, 967 P.2d 361 (1998) ; State v. McBride , 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996) ; State v. Tolliver , 22 Kan. App. 2d 374, 380, 916 P.2d 725 (1996). The justification behind this rule is that one who invites error by his or her own acts cannot then complain or take advantage of it on appeal. Neal , 25 Kan. App. 2d at 706 [971 P.2d 748]." Oliver , 30 Kan. App. 2d at 667 [46 P.3d 36].

While Oliver weighs in Schulze's favor, it was decided over 17 years ago, and the invited error doctrine has changed. When Oliver was decided, some Kansas caselaw held the invited error rule prevented parties from challenging an illegal sentence on appeal if they had stipulated to or failed to object to the defendant's criminal history. For example, in State v. McBride , 23 Kan. App. 2d 302, Syl. ¶ 3, 930 P.2d 618 (1996), overruled by State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015), a panel of this court held "[a] defendant who invites error by stipulating to his or her criminal history cannot request a correction of sentence under K.S.A. 22-3504 after pronouncement of sentence." See also State v. Goeller , 276 Kan. 578, 585, 77 P.3d 1272 (2003), overruled by Dickey , 301 Kan. 1018, 350 P.3d 1054 ; State v. Vandervort , 276 Kan. 164, 175-76, 72 P.3d 925 (2003), overruled by Dickey , 301 Kan. 1018, 350 P.3d 1054. And Oliver relied on McBride in reaching its holding. Oliver , 30 Kan. App. 2d at 667, 46 P.3d 36.

But another line of cases distinguishes between a stipulation to the factual basis for the defendant's criminal history and a stipulation to its legal effect. In State v. Donaldson , 35 Kan. App. 2d 540, 544, 133 P.3d 154 (2006), a panel of this court held "no party can properly stipulate to an incorrect application of the law." As a result, "the defendant's failure to object to his criminal history score ... merely prevents him from challenging the factual basis for the criminal history classification." 35 Kan. App. 2d at 544, 133 P.3d 154.

Our Supreme Court reached the same conclusion in State v. Weber , 297 Kan. 805, 813-14, 304 P.3d 1262 (2013). There, the defendant challenged the district court's designation of his prior out-of-state conviction as a sexually violent crime to classify him as an aggravated habitual sex offender and impose an enhanced sentence. The State argued the defendant's challenge was barred because he had failed to challenge the classification at sentencing.

The Weber court agreed the defendant "should be bound by his counsel's stipulation of fact in the district court with respect to his criminal history, i.e ., the factual stipulation that [the defendant] was convicted in [another state] of the crime of assault with intent to commit criminal sexual contact in the second degree." 297 Kan. at 814, 304 P.3d 1262. But the court held the "factual stipulation does not answer the question before us, which is: what is the legal effect of that prior conviction on the imposition of an enhanced sentence." 297 Kan. at 814, 304 P.3d 1262. The Weber court concluded defense counsel's stipulation did not bar it from reviewing the legal conclusion drawn from the admitted facts. 297 Kan. at 814-15, 304 P.3d 1262.

A few years after Weber , our Supreme Court in Dickey overruled Vandervort , Goeller , and McBride , holding:

"[A] defendant's stipulation or failure to object at sentencing will prevent the defendant from later challenging the existence of the convictions listed in his or her criminal history. But a stipulation or lack of an objection regarding how those convictions should be classified or counted as a matter of law for the purpose of determining the defendant's criminal history score will not prevent a subsequent challenge under K.S.A. 22-3504(1) of his or her prior convictions. [Citation omitted.]" Dickey , 301 Kan. at 1032, 350 P.3d 1054.

While Oliver has never explicitly been overruled, it relied on caselaw which has been overruled. Oliver also held the State's stipulation to the legal conclusion drawn from the defendant's convictions prevented the State from later challenging the sentence. But parties may not stipulate to the legal conclusions drawn from the defendant's prior convictions. Dickey , 301 Kan. at 1032, 350 P.3d 1054. Thus, we do not find Oliver helpful or persuasive.

However, the district court appears to have erred in modifying Schulze's sentence. As Schulze points out, Kansas courts have distinguished between a stipulation to the factual basis for a defendant's criminal history and a stipulation to its legal effect. Donaldson , 35 Kan. App. 2d at 544, 133 P.3d 154. The invited error rule may preclude review of the former but not the latter. Schulze argues the State's failure to object at the sentencing hearing is more akin to a stipulation to the factual basis of his criminal history score. And under Weber and Dickey , the State cannot now challenge the existence, or nonexistence, of Schulze's prior convictions.

Schulze also cites State v. Tolliver , 22 Kan. App. 2d 374, 916 P.2d 725 (1996). In Tolliver , the parties agreed with the PSI report showing the defendant had no criminal history and the district court sentenced him accordingly. The State later moved to set aside the defendant's sentence as illegal, alleging he actually had a lengthy criminal history and was on parole when he committed the crime of conviction. The district court granted the State's motion and resentenced the defendant based on the higher criminal history score.

On appeal, this court vacated the defendant's sentence and remanded the case to reinstate the original sentence. This court held the original sentence was not illegal because it was the appropriate sentence for the agreed upon criminal history score, even if the score was incorrect. In reaching this conclusion, this court explained the State has the burden to prove the defendant's criminal history unless the defendant admits his or her criminal history in court, and the defendant does not have to provide the State with an accurate criminal history. Because the defendant had not admitted his criminal history, the State had to prove it at the sentencing hearing and the State failed to carry this burden. 22 Kan. App. 2d at 380-81, 916 P.2d 725. Another panel of this court summarized Tolliver as "embod[ying] the principle that if the State fails to find a conviction or convictions in a defendant's criminal history, the State is prohibited from later amending, and ultimately increasing, the severity level of a defendant's criminal history for the crime or crimes at issue." State v. Strickland , 23 Kan. App. 2d 615, 621, 933 P.2d 782 (1997).

Tolliver is factually distinguishable. It relied on the rule the State must prove a defendant's criminal history unless the defendant admits his or her history in court. 22 Kan. App. 2d at 380, 916 P.2d 725 (citing State v. Hankins , 19 Kan. App. 2d 1036, 1047, 880 P.2d 271 [1994] ); see also K.S.A. 2017 Supp. 21-6814(a) and (b). In Tolliver , the defendant did not admit to his criminal history, but Schulze did in this case. Nevertheless, Tolliver supports Schulze's argument, as the State is trying to add newly discovered convictions after his original sentencing.

The State responds parties may not stipulate to an illegal sentence and the invited error rule does not apply, citing State v. Lehman , 308 Kan. 1089, 427 P.3d 840 (2018). In Lehman , the State recommended the wrong period of postrelease supervision, and the district court sentenced Lehman based on the State's recommendation. The State later moved to correct an illegal sentence, arguing the State recommended term of postrelease supervision was not authorized by statute. The Lehman court held invited error did not preclude the State's motion:

"[W]e do not allow the parties to agree upon or stipulate to an illegal sentence. ... A corollary to the proposition that a party is not bound by his or her stipulation to an illegal sentence is that a party cannot be bound by a requested illegal sentence through the invited error doctrine. An illegal sentence may be corrected regardless of whether one or more parties may have had a hand in arriving at the illegality. [Citations omitted.]" Lehman , 308 Kan. at 1093, 427 P.3d 840.

The State argues Lehman controls the present situation: "Surely if the State is not precluded from filing a motion to correct an illegal sentence under these two theories under Lehman , the State should likewise not be prevented from filing this type of motion as an attempt to re-litigate an erroneous criminal history score." The Lehman court found the sentence was illegal because the statutorily required length of postrelease supervision had been imposed in error. Here the sentence was legal when first imposed based on the provided PSI.

While Lehman may have declined to apply the invited error rule to the requested illegal sentences, it did not negate the earlier distinction made between factual and legal stipulations. The State has not cited any cases suggesting the Kansas Supreme Court is departing from this distinction. Based on Dickey and Weber , the State cannot now challenge the factual basis for Schulze's criminal history score because it failed to object to it before the district court. However, in the future, the State can rely on the newly discovered convictions should Schulze be convicted of another crime. See Jenkins v. State , 32 Kan. App. 2d 702, 709-10, 87 P.3d 983 (2004).

Sentence vacated and case remanded with directions to resentence based on the first PSI report.


text:
    Larry TOOTHMAN, Appellant, v. Martin J. SAUERS, Warden, et al., Appellees.
    No. 120,724
    Court of Appeals of Kansas.
    Opinion filed September 6, 2019.
    Affirmed.


text:
    In the INTERESTS OF
    A.A., H.A., K.A., and B.B., Minor Children.
    No. 120,653
    Court of Appeals of Kansas.
    Opinion filed September 6, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Dominique La Velle OATIS, Appellant.
    No. 120,014
    Court of Appeals of Kansas.
    Opinion filed September 6, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Nicholas G. COOK, Appellant.
    No. 119,925
    Court of Appeals of Kansas.
    Opinion filed September 6, 2019.
    Affirmed in part. Reversed in part. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. William K. BEMIS, Appellant.
    Nos. 118 357 118,358
    Court of Appeals of Kansas.
    Opinion filed September 6, 2019.
    Affirmed.


text:
    Marcus B. WASHINGTON, Appellant, v. STATE of Kansas, Appellee.
    No. 119,291
    Court of Appeals of Kansas.
    Opinion filed September 13, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Adam M. RING, Appellant.
    No. 119,483
    Court of Appeals of Kansas.
    Opinion filed September 6, 2019.
    Affirmed.


text:
    VISION NET, INC., Petitioner and Appellant, v. State of Montana, DEPARTMENT OF REVENUE, Respondent and Appellee.
    DA 18-0540
    Supreme Court of Montana.
    Submitted on Briefs: April 10, 2019 Decided: August 27, 2019
    For Appellant: Celia Blewett, Slate Law PLLC, Great Falls, Montana, Michael W. Green, D. Wiley Barker, Crowley Fleck PLLP, Helena, Montana
    For Appellee: Nicholas J. Gochis, Teresa G. Whitney, Special Assistant Attorneys General, Montana Department of Revenue, Helena, Montana
   Justice Jim Rice delivered the Opinion of the Court.

¶1 Vision Net, Inc., (Vision Net) appeals the order entered by the First Judicial District Court, Lewis and Clark County, denying its motion for summary judgment and granting summary judgment to the Montana Department of Revenue (DOR or Department). The District Court held the Department could properly centrally assess Vision Net's property, resulting in a significant increase in the company's state tax liability. Vision Net argues that DOR's central assessment violated statute and the company's constitutional rights of equal protection and equalization under Article II, § 4 and Article VII, § 3 of the Montana Constitution. We affirm and address the following issue:

Did the District Court err by holding the Department properly centrally assessed Vision Net's property?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Vision Net is a Montana corporation headquartered in Great Falls, collectively owned by nine telephone companies, but is not a subsidiary of any other company. Vision Net provides internet-related services to Montana customers, including two-way video conferencing, internet connections, technical consulting, and network management, among other things. Vision Net owns telecommunications equipment that is positioned in thirty-two Montana counties and connected by fiber optic cables that transport customer data across the network. As of 2015, Vision Net owned 7.43 miles of fiber cable, all of which was located within the separate boundaries of Yellowstone County, Lewis and Clark County, and Flathead County. None of the cable owned by Vision Net physically crosses state or county lines. Vision Net also leases access to additional cable. Telephone companies and cooperatives own fiber optic cables that stretch across Montana and into other states. To connect its telecommunications equipment and create its state-wide network, Vision Net leases access to "dark fiber"-an industry term referring to individual strands of unused fiber within a fiber optic cable-from other telephone companies. By entering "indefeasible right of use" agreements with telephone companies, Vision Net obtains access to fiber that crosses county lines, connects its equipment, and ultimately provides network services to its Montana customers.

¶3 Vision Net monitors and maintains its network from the company's Network Operations Center located in Great Falls. The Center operates twenty-four hours per day, seven days per week, and 365 days per year. The Great Falls location serves as Vision Net's principal office, which houses the company's CEO, business operations, and customer service call center. Vision Net also manages its centralized billing system from the Great Falls office.

¶4 Historically, Vision Net's properties have been locally assessed by the counties in which the property is located, and were classified by the Department as Class Four commercial and Class Eight business equipment, pursuant to §§ 15-6-134, -138, MCA. In 2015, the Department, pursuant to § 15-8-601(1), MCA, reclassified Vision Net as a centrally assessed company under § 15-23-101(2), MCA, placing its properties within Class Thirteen pursuant to § 15-6-156(1), MCA, which increased Vision Net's total tax liability by over 300%. To avoid a claim of double taxation, the Department removed the value of the fiber leased by Vision Net from the valuation of the company, choosing instead to tax the telephone companies for the entire fiber cable lines.

¶5 Vision Net filed a Petition for Declaratory Judgment in April 2016, challenging the Department's decision to reclassify Vision Net's property as a violation of Montana statutory and constitutional rights. The parties filed cross-motions for summary judgment and the District Court held oral argument on the motions in January 2018, after which the District Court granted summary judgment to the Department.

STANDARD OF REVIEW

¶6 We review a district court's ruling on summary judgement de novo, applying the same criteria as the district court according to M. R. Civ. P. 56. Bailey v. State Farm Mut. Auto. Ins. Co. , 2013 MT 119, ¶ 18, 370 Mont. 73, 300 P.3d 1149. This Court may "reverse or modify" the decision of a state agency "if substantial rights of the appellant have been prejudiced" through a "violation of constitutional or statutory provisions." Section 2-4-704(2)(a)(i), MCA. We review a district court's conclusions of law for correctness. State v. PPL Mont., Inc. , 2007 MT 310, ¶ 19, 340 Mont. 124, 172 P.3d 1241.

DISCUSSION

¶7 Did the District Court err by holding the Department properly centrally assessed Vision Net's property?

¶8 Section 15-23-101, MCA, identifies properties the Department must centrally assess, and states, in relevant part:

The department shall centrally assess each year:
...
(2) property owned by a corporation or other person operating a single and continuous property operated in more than one county or more than one state[;]

Section 15-23-101(2), MCA. Vision Net argues it is not subject to central assessment because "[i]t does not operate a single and continuous intercounty property" as required under the statute. Vision Net acknowledges that it owns property throughout the state, but contends because none of its owned property crosses county lines, it does not qualify for central assessment.

¶9 The Department answers that even though Vision Net's network includes some leased property, the company nonetheless still operates a single and continuous property in more than one county, subjecting it to central assessment. The Department argues Vision Net operates as a "functionally integrated property" that broadly provides internet services to Montana customers across the state. The District Court agreed, concluding Vision Net satisfied the operational requirements of § 15-23-101(2), MCA, and is subject to central assessment.

¶10 Vision Net argues it neither owns nor operates "a single and continuous intercounty property" because, first, only its leased fiber optic cables cross county lines. Vision Net cites to its fiber lease agreements with the telephone companies, which, as the District Court found, "expressly assign[ ] to the telephone company the responsibility to design, engineer, install, and construct the fiber optic system." Comparing its use with the array of responsibilities vested in the telephone companies to maintain and control the leased intercounty cables, Vision Net contends that, at most, its actions amount to "use" of the cables, not "operation" as required by § 15-23-101(2), MCA.

¶11 Initially, we note that § 15-23-101(2), MCA, is not a model of clarity, employing double uses of the terms "property" and "operate" within its single clause. Ownership of the property is considered in the determination of central assessment, but the operative phrase in the provision is "a single and continuous property operated in more than one county," and thus the question is broader than a consideration of ownership. As we explained in Bresnan Communs., LLC v. State Dep't of Revenue , 2013 MT 357, ¶ 46, 373 Mont. 29, 315 P.3d 921, "[p]roperties that enjoy a unity of ownership and devotion to a single use qualify as single and continuous properties" (citing W. Union Tel. Co. v. State Bd. of Equalization , 91 Mont. 310, 322-23, 7 P.2d 551, 552-53 (1932) ), but also, " '[s]ingle and continuous' properties are functionally integrated over a wide area and enjoy a unity of use and management." Bresnan , ¶ 46. Bresnan owned equipment in twenty Montana counties and upgraded its network so that it could also provide fiber optic internet and telephone service to customers in those counties. Bresnan , ¶ 47. We noted that Bresnan operated a continuous network across county lines, managed operations from a central location, enjoyed the benefits of centralized billing, and overall operated in an "integrated fashion." Bresnan , ¶ 47.

¶12 Similarly, here, Vision Net owns equipment in thirty-two counties across the state of Montana that are connected by fiber optic cables, some of which are intra-county cables owned by Vision Net, and other cables that are leased from telephone companies. This connected network is monitored from Vision Net's Operations Center, where other business operations such as centralized billing and customer support are also coordinated. Vision Net uses its network to provide internet-based services to customers throughout the state. Although Vision Net leases connecting cable, its network as a whole is "functionally integrated over a wide area," allowing the company to "enjoy a unity of use and management," and is operated as a single and continuous property. Bresnan , ¶ 46.

¶13 Despite these aspects of a single property, Vision Net argues it does not satisfy the definition of "operating" the leased fiber optic cables as necessary under the statute. As Vision Net notes, "operate" is not defined under the statute or other applicable laws and therefore, offers various dictionary definitions to argue that "operating" requires physical and exclusive control. However, none of these offered definitions of "operate" require an act to be performed exclusively by one party at one time. In Mont. Dep't of Revenue v. Priceline.com, Inc ., 2015 MT 241, ¶ 10, 380 Mont. 352, 354 P.3d 631, we held that one definition of "operate" is "to manage and put or keep in operation whether with personal effort or not." Priceline , ¶ 10 (citing Pitt Cnty. v. Hotels.com, LP , 553 F.3d 308, 313 (4th Cir. 2009) (quoting Webster's Third New International Dictionary 1580-81 (2002))). Vision Net satisfies this definition. The company manages traffic over the leased fiber and ensures that it continues to operate within the network by constantly monitoring the flow of data across the state from its Network Operations Center. The fact that the fiber leasing agreements give the telephone companies exclusive right to physically repair and maintain the fiber does not mean Vision Net is not also using the lines to "operate" its connected system. Given its unfettered right to use and monitor the fiber, Vision Net's use of the lines in conjunction with the remainder of its network satisfies the definition of "operate[ ]" in § 15-23-101(2), MCA.

¶14 After considering both the physical attributes and the use and functioning of the property, we conclude that Vision Net is operating a single and continuous property in more than one county, and that the District Court correctly held that it was subject to central assessment.

¶15 Finally, Vision Net argues the Department "treat[ed] Vision Net differently than other similarly situated entities" by centrally assessing Vision Net while not doing so to companies that also "lease and use fiber to transport data," and therefore, as applied by the Department, § 15-23-101, MCA, violates its rights to equal protection and equalization under the Montana Constitution. Article II, § 4 of the Montana Constitution guarantees that no one "shall be denied the equal protection of the laws." Article VIII, § 3 of the Montana Constitution carries equal protection into the tax realm by requiring the state to "appraise, assess, and equalize the valuation of all property which is to be taxed in the manner provided by law."

¶16 We have long held that "the first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." PPL Mont., Inc. , ¶ 33 (citation and internal quotations omitted). " 'If the classes are not similarly situated, then ... it is not necessary for us to analyze the challenge further.' " Donaldson v. State , 2012 MT 288, ¶ 21, 367 Mont. 228, 292 P.3d 364 (Rice, J., concurring) (quoting Kershaw v. Dep't of Transp. , 2011 MT 170, ¶ 17, 361 Mont. 215, 257 P.3d 358 ). We identify similarly situated classes by "isolat[ing] the factor allegedly subject to impermissible discrimination." Gazelka v. St. Peter's Hosp ., 2018 MT 152, ¶ 16, 392 Mont. 1, 420 P.3d 528 (citation and internal quotations omitted). "Thus, two groups are similarly situated if they are equivalent in all relevant respects other than the factor constituting the alleged discrimination." Gazelka , ¶ 16.

¶17 Here, central assessment is the factor Vision Net claims is subject to impermissible discrimination. Vision Net asserts it was unlawful for the Department to centrally assess its properties when "[a] number of other entities including banking institutions, accounting firms, and law firms lease access to dark fiber to transfer data between locations in Montana," yet are not also centrally assessed. However, Vision Net has failed to establish that they are similarly situated or "equivalent" to these other entities "in all relevant respects," apart from the alleged differences in tax assessment. Gazelka , ¶ 16. For purposes of an equal protection challenge, commonly leasing fiber cables does not, by itself, render Vision Net similarly situated to other entities that do the same.

¶18 Section 15-23-101, MCA, requires the Department to centrally assess property that satisfies certain criteria, but it does not enumerate fiber leasing as a definitive characteristic of a centrally assessable property. As discussed above, a variety of factors are considered when determining whether central assessment is proper. Simply because two companies both lease fiber optic cable does not, without more, render them similarly situated for purposes of the application of § 15-23-101, MCA.

¶19 "It is now settled by a long line of decisions that ... the equal protection clause is not violated by prescribing a different rule of taxation for such companies than for concerns engaged in other lines of business." W. Union Tel. Co. , 91 Mont. at 325, 7 P.2d at 554. Vision Net is a telecommunications company, which exists in a different industry than the other entities it uses in comparison. We conclude that Vision Net has failed to establish it was unequally treated to another similarly situated party, and thus, its constitutional challenge is without merit.

¶20 Affirmed.

We concur:

MIKE McGRATH, C.J.

LAURIE McKINNON, J.

INGRID GUSTAFSON, J.

JAMES JEREMIAH SHEA, J.

      Vision Net contends the Department incorrectly argued to the District Court that, merely because Vision Net satisfied the definition of a telecommunications company, central assessment is required under § 15-6-156(1)(d), MCA, which places into Class Thirteen "allocations of centrally assessed telecommunications services companies." However, while portions of the Department's arguments could be so read, ultimately its position was correctly summarized: "The Department assesses centrally the interstate and inter-county continuous properties of telecommunications companies." DOR's Brief in Support of its Motion for Summary Judgment, at *10 (emphasis added). Section 15-6-156(1)(d), MCA, places into Class Thirteen telecommunications services company property that has been determined to qualify for central assessment pursuant to § 15-23-101, MCA. The District Court likewise correctly stated the specific issue: "The question is whether the taxpayer operates a single and continuous property across county or state lines." Order on Motions for Summary Judgment, at *11.

      Bresnan also involved a classification question about whether the company was to be taxed as a "telecommunication services company[y]" or as a "cable television system[ ]," which is not at issue here. Bresnan , ¶¶ 25, 42.


text:
    STATE of Montana, Plaintiff and Appellee, v. Robert Matthew WITTAL, Defendant and Appellant.
    DA 17-0196
    Supreme Court of Montana.
    Submitted on Briefs: July 10, 2019 Decided: September 3, 2019
    For Appellant: Chad Wright, Appellate Defender, Kristen L. Peterson, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana, Travis R. Ahner, Flathead County Attorney, John Donovan, Andrew Clegg, Deputy County Attorneys, Kalispell, Montana
   Justice Beth Baker delivered the Opinion of the Court.

¶1 Robert Matthew Wittal appeals an Eleventh Judicial District, Flathead County, jury verdict finding him guilty of deliberate homicide. Wittal claims ineffective assistance of counsel after his trial attorney objected to instructing the jury that accomplice testimony must be viewed with distrust and must be corroborated. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 David Toman told police in June 2016 that he had witnessed a murder approximately two weeks prior. He led officers to a wooded area near Echo Lake where they found Wade Rautio's body beneath a log in the creek. An autopsy later revealed that Rautio had been stabbed twenty-five times, including fatal cuts to the jugular vein and carotid artery. Law enforcement arrested Melisa Crone, Christopher Hansen, Toman, and Wittal for their involvement in Rautio's murder. The State claimed that Crone was a drug dealer who had ordered Wittal to kill Rautio over a drug debt. The State charged Wittal with deliberate homicide. It separately charged Toman, Hansen, and Crone with accountability to deliberate homicide. Wittal's case proceeded to trial, and the jury convicted him. We summarize the evidence relevant to his claim on appeal.

¶3 Crone and Hansen lived together. Toman, Rautio, and Wittal also were staying at the house. Toman testified he drove with Hansen, Wittal, and Rautio out to the woods near Echo Lake after Crone kicked Rautio out of the house for allegedly stealing from her. Wittal, holding a large knife, told Rautio to get out of the car and to empty out his pockets. Upon entering a bushy area near the creek, Wittal began striking Rautio with the knife on his legs and arms. Toman stated that Wittal "was just slashing at [Rautio], just swinging his knife." Rautio exclaimed, "I'm innocent. Please don't kill me." Toman saw Wittal stab Rautio on the top of the head. Crone testified that Wittal told her that he stabbed Rautio about 100 times, including through the skull.

¶4 Hansen testified that he was under the impression they were going to "thump on" Rautio for stealing drugs from Crone. Hansen heard Wittal tell Rautio to get out of the car, and Wittal pulled out a "Bowie" knife. Hansen had heard Wittal say the night before that Wittal wanted to stab Rautio. Hansen saw Rautio run from Wittal toward the creek and back to the car. Hansen admitted striking Rautio to prevent him from escaping. At some point, Rautio tripped and fell over onto his back, "where Wittal was slashing on him with that big machete, that big knife." Hansen saw Wittal eventually lose the Bowie knife in the creek during the chase and struggle. Hansen admitted that he gave Wittal a second knife, which authorities later identified as the final murder weapon. Hansen claimed that he had nothing more to do with the murder other than hiding that knife after Wittal gave it back to him. Law enforcement officers found a large knife in the creek upstream from Rautio's body and the other knife at Hansen's workplace.

¶5 The State called two additional witnesses who were present at Crone's house before Wittal and the others left with Rautio and after they returned without him. Both testified to statements they overheard and to observations they made about the appearance of the men, including Wittal's wet clothing, and to seeing him put clothes in the fireplace. The prosecution also entered evidence from Wittal's cell phone, including text messages, phone numbers called, and cell phone locations.

¶6 Wittal took the stand in his own defense. He claimed that he was not involved in Rautio's murder and was not present when Rautio was killed. Wittal asserted that Crone had stolen his phone, and it was not in his possession when the text messages were sent or calls were made. Wittal's theory in essence was that Crone, Thomas, and Hansen planned and carried out the homicide, and the three of them set him up to take the fall.

¶7 At the conclusion of the evidence, the State proposed an accomplice jury instruction:

Testimony has been presented that the witness DAVID TOMAN, CHRISTOPHER HANSEN, AND/OR MELISA CRONE may be legally accountable for the offense charged in this case. In this respect, you are to be guided by the following rules of law:
1. A person is legally accountable for the conduct of another when: Either before or during the commission of the offense of Deliberate Homicide, with the purpose to promote or facilitate the commission, the person solicits, aids, or attempts to aid the other person in the planning or the commission of that offense.
2. It is a question of fact for the jury to determine from the evidence and from the law as given you by me whether or not in this particular case the witness DAVID TOMAN, CHRISTOPHER HANSEN AND/OR MELISA CRONE is or is not legally accountable within the meaning of the law.
3. The testimony of one legally accountable ought to be viewed with distrust.
4. A conviction cannot be had on the testimony of one legally accountable unless the testimony is corroborated by other evidence that in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

¶8 Wittal's counsel objected to the instruction. Although he agreed that their testimony should be viewed with distrust, he took issue with other portions of the instruction, particularly that the jury was to determine whether Toman, Hansen, or Crone was legally accountable. Counsel suggested that it would confuse the jury because "[t]he issue we're here for is whether or not Robert Wittal did or did not commit this homicide ...." He believed it would be confusing to the jury "why they're evaluating whether [Toman, Hansen, and Crone] are or are not legally accountable." The District Court agreed that could be confusing. The court noted that failure to request an accomplice instruction may be a tactical decision when the proffered defense was that the "defendant was not present at the scene of the crime and therefore was not an accomplice." Ultimately, the court left it to the defense whether it wanted the instruction offered. Wittal's counsel said that he did not want to offer the instruction because he was "concerned that the jury gets concerned [sic] about whether they're now evaluating [Toman, Hansen, and Crone] as to whether they did or did not because my client was not there ...." The court did not give the instruction.

¶9 The District Court sentenced Wittal to 100 years for deliberate homicide, with an additional ten-year weapon enhancement.

STANDARD OF REVIEW

¶10 A defendant's claim of ineffective assistance of counsel is a mixed question of law and fact that this Court reviews de novo. State v. Root , 2015 MT 310, ¶ 8, 381 Mont. 314, 359 P.3d 1088.

DISCUSSION

¶11 Article II, Section 24, of the Montana Constitution and the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantee a person the right to the effective assistance of counsel. This Court applies the two factors enunciated in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), to evaluate claims of ineffective assistance of counsel. The defendant must demonstrate (1) that his counsel's performance fell below the range of competence required of attorneys in criminal cases and (2) that his counsel's deficient performance prejudiced his case. Whitlow v. State , 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. There is a strong presumption in favor of counsel's competence, "as counsel possesses a wide latitude in determining what tactics to employ when defending a client." State v. St. Germain , 2007 MT 28, ¶ 33, 336 Mont. 17, 153 P.3d 591. The defendant bears the burden to show that his counsel's performance fell below an objective standard of reasonableness. St. Germain , ¶ 33.

¶12 Wittal argues that defense counsel was ineffective because the outcome of the case turned on Toman's, Hansen's, and Crone's credibility. He maintains that his trial counsel should have agreed, not objected, to an accomplice jury instruction. Wittal contends that the State exploited the absence of the jury instruction and that Toman's, Hansen's, and Crone's testimonies were not corroborated. The State counters that this Court should not address Wittal's ineffective assistance of counsel claim on direct appeal because the record does not explain "why" defense counsel chose to object to the jury instruction. Alternatively, the State argues that Wittal's trial counsel was not ineffective because his objection was based upon a reasonable tactical decision. Contrary to Wittal's argument, the State points out that it emphasized during closing argument the evidence corroborating the testimony of the three alleged accomplices.

¶13 When considering an ineffective assistance of counsel claim raised on direct appeal, we first determine whether the claim is based on the trial record. State v. Sawyer , 2019 MT 93, ¶ 13, 395 Mont. 309, 439 P.3d 931. The record "must adequately document a challenged act or omission of defense counsel for the defendant to raise an ineffective assistance claim on direct appeal." Sawyer , ¶ 13 (internal citation omitted). We will address the claim on direct appeal if the record "explains why counsel did not do something." Sawyer , ¶ 13 (internal citation omitted). If the claim instead is based on matters outside the record, we will not review it on direct appeal, recognizing that the defendant may raise the issue in a postconviction proceeding. Sawyer , ¶ 13. We may consider a claim not based on the trial record if there is no plausible justification for counsel's action or inaction. State v. Kougl , 2004 MT 243, ¶ 15, 323 Mont. 6, 97 P.3d 1095. ¶14 Wittal's counsel objected to the jury instruction because he was concerned that it would confuse the jury about who was on trial and what questions of fact needed to be answered. Defense counsel agreed, though, that its caution to view the witnesses' testimony with distrust was appropriate. The District Court opined that "whether [the instruction is] offered or not is a tactical decision that [defense counsel] and his client would need to make." The court stated also that if Wittal's defense was that he was not "even there and had nothing to do with it," it may be a tactical decision to not offer the instruction. Wittal does not assert that counsel had "no plausible justification," claiming instead that the record is not silent and that his claim is thus appropriate for review on direct appeal. We decline to entertain Wittal's argument. Because counsel agreed with some parts of the instruction and not others, we conclude that the record is not sufficiently developed to determine whether his objection was a reasonable tactical decision. See State v. Vukasin , 2003 MT 230, ¶ 43, 317 Mont. 204, 75 P.3d 1284. If Wittal chooses to pursue his ineffective assistance of counsel claim, he must do so in a properly presented petition for postconviction relief.

CONCLUSION

¶15 The judgment of conviction is affirmed. If Wittal files a petition for postconviction relief, the District Court may consider appointing counsel under § 46-21-201(2), MCA.

We Concur:

MIKE McGRATH, C.J.

JAMES JEREMIAH SHEA, J.

DIRK M. SANDEFUR, J.

INGRID GUSTAFSON, J.