NOT DESIGNATED FOR PUBLICATION No. 114,951 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. SCOT E. BACON II, Appellant. MEMORANDUM OPINION Affirmed. Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed June 2, 2017. appellant. Sarah G. Swain and James W. Fuller, legal intern, of The Swain Law Office, of Lawrence, for Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee. Before GREEN, P.J., STANDRIDGE and GARDNER, JJ. Per Curiam: The State charged Scot E. Bacon II with two counts of commercial sexual exploitation of a child. Following a jury trial, Bacon was found guilty of one count but acquitted of the other. Bacon raises eight issues in his direct appeal: (1) that his statutory speedy trial rights were violated; (2) that the trial court erred by allowing the State to amend its complaint; (3) that the trial court erred by denying his request for a new preliminary hearing on the amended complaint; (4) that the trial court erred by failing to instruct the jury on the definition of "intentionally"; (5) that his conviction was 1
not supported by sufficient evidence; (6) that the trial court erred by denying his motion for a continuance of his trial; (7) that the trial court erred by failing to investigate his dissatisfaction with his first counsel; and (8) that if none of the preceding errors individually require reversal, they do require reversal when considered cumulatively. We disagree. Accordingly, we affirm. Because we set forth the relevant facts in detail when discussing the individual issues of this appeal, we do not recite them here. Were Bacon's Speedy Trial Rights Violated? Bacon argues that his statutory speedy trial rights were violated. In making this argument, Bacon alleges that his attorney James Mamalis never consulted him before moving for all of the continuances on his behalf. Bacon alleges that because he did not consent to the continuances, the continuances were no longer attributable to him. This means that his statutory speedy trial clock ran out before his jury trial. Standard of Review "Whether the State violated a defendant's statutory right to a speedy trial is a question of law subject to de novo review." State v. Sievers, 299 Kan. 305, 307, 323 P.3d 170 (2014). Bacon Raises this Argument for the First Time on Appeal Although the State has failed to argue this in its brief, the first major problem with Bacon's argument is that he is raising it for the first time on appeal. Generally, issues not raised below are not properly before this court on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are limited exceptions to this rule when consideration of 2
an issue raised for the first time on appeal involves only a question of law, is necessary to serve the ends of justice or prevent the denial of fundamental rights, or the judgment may be upheld on appeal despite the trial court's reliance on the wrong ground or reason. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Yet, this court has consistently declined to consider alleged speedy trial violations raised for the first time on appeal. See State v. Crawford, 46 Kan. App. 2d 401, 408-09, 262 P.3d 1070 (2011), aff'd 300 Kan. 740, 334 P.3d 311 (2014); Elliott v. State, No. 107,387, 2013 WL 1010344 (Kan. App. 2013), rev. denied 297 Kan. 1244 (2013); State v. Sanders, No. 104,456, 2011 WL 2555670 (Kan. App. 2011) (unpublished opinion), rev. denied 293 Kan. 1112 (2001); State v. Miser, No. 99,274, 2009 WL 1691940 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1100 (2011). In Crawford, this court explained why it would very difficult to address Crawford's speedy trial rights challenge for the first time on appeal, emphasizing that there was little information regarding the continuances his attorney moved for in the record. 46 Kan. App. 2d at 408. The Crawford court further stated: "Had Crawford raised the speedy trial issue in district court, we know of no legal authority that would have precluded the district court from allowing the parties to present evidence to establish whether Crawford requested or acquiesced in the May 14, 2007, continuance. To the contrary, an appellate court would expect the district court to make findings of fact and conclusions of law so the issue could be adequately reviewed on appeal." 46 Kan. App. 2d at 408. Once Bacon was represented by Swain, he certainly could have challenged whether he was consulted before Mamalis moved for the continuances and whether his speedy trial rights had been violated. Yet, because Bacon failed to challenge the alleged violation of his speedy trial rights below, this court has no record on which to judge the veracity of Bacon's allegations. Thus, like the Crawford court, this court is put in a position where it cannot adequately evaluate Bacon's factual allegations. 3
Moreover, Bacon fails to acknowledge that he is raising this issue for the first time on appeal in his brief. Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) requires parties to explain why issues not raised below should be considered for the first time on appeal. In State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), our Supreme Court held that when a party raises an issue for the first time on appeal but fails to acknowledge the fact that they have raised the issue for the first time on appeal, this issue is deemed waived or abandoned because the party failed to comply with Rule 6.02(a)(5). In short, Bacon is raising this argument for the first time on appeal without recognition that he is raising the argument for the first time on appeal. Thus, he has abandoned his argument by failing to comply with Rule 6.02(a)(5). Moreover, even if this court was not prevented by Rule 6.02(a)(5) from reviewing his challenge, it would be impossible to gauge the veracity of his allegations given the lack of record below. Consequently, we decline to consider Bacon's argument and deem it waived or abandoned. Conclusion Bacon is not entitled to reversal of his conviction based on an alleged violation of his statutory speedy trial rights. First, he is raising this argument for the first time on appeal. Second, under K.S.A. 2016 Supp. 22-3402(g), because Bacon has failed to allege prosecutorial misconduct or a constitutional speedy trial rights violation, Bacon would not be entitled to reversal of his conviction even if Mamalis failed to consult with him before obtaining the continuances. 4
Did the Trial Court Err by Allowing the State to Amend Its Complaint? Bacon next argues that the trial court abused its discretion by allowing the State to amend its complaint from one count of aggravated human trafficking to two counts of commercial sexual exploitation of a child on Friday, September 11, 2015, 3 days before the start of trial. Bacon argues that the trial court erred because the amended complaint charged both new and different crimes. In making his argument, Bacon emphasizes that the elements of aggravated human trafficking are broader than the elements of commercial sexual exploitation of a child. Bacon states that this resulted in him wasting time preparing his defense for a broader crime than on what he was ultimately tried. The State responds the trial court did not abuse its discretion by allowing it to amend its complaint because no additional or different crime was charged and Bacon was not prejudiced. Standard of Review This court reviews the trial court's decision to grant an amendment to a complaint for an abuse of discretion. State v. Bischoff, 281 Kan. 195, 205, 131 P.3d 531 (2006). An abuse of discretion occurs only when no reasonable person would have made the same decision as the trial court. Bischoff, 281 Kan. at 205. In conducting this review, defendants always carry the burden of establishing error. Bischoff, 281 Kan. at 205. Moreover, appellate courts have consistently given the State wide discretion in amending a complaint before trial. Bischoff, 281 Kan. at 205. Applicable Law K.S.A. 22-3201(e) states: "The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced." (Emphasis added.) 5
As a result, when reviewing amendment challenges, this court's analysis involves two distinct steps. First, courts must consider whether an additional or different crime was charged. Second, courts must consider if the defendant suffered prejudice based on the amendment. State v. Calderon-Aparicio, 44 Kan. App. 2d 830, 847, 242 P.3d 1197 (2010). Nevertheless, the most significant factor in this analysis is whether the amendment occurred before or after trial. Regarding K.S.A. 22-3201(e), in State v. Woods, 250 Kan. 109, 114-15, 825 P.2d 514 (1992), our Supreme Court explained: "Although the statutory language has changed since the inception over a century ago of statutory authorization to amend a complaint, this court consistently has given the State considerable latitude in amending a complaint before trial. A liberal interpretation does not contradict the express language of the statute: K.S.A. 22-3201(4) does not forbid a court from differentiating between allowing the State to amend complaints before trial and during trial." (Emphasis added.) The Woods court then went on to hold that when an amendment is made before trial, error "will be found only if the defendant's substantial rights are prejudiced." 250 Kan. at 115. See also Bischoff, 281 Kan. at 205 (holding "even the charging of a different crime may be allowed by an amendment to a complaint before trial, provided the substantial rights of the defendant are not prejudiced"); In re J.T.M., 22 Kan. App. 2d 673, 677, 922 P.2d 1103 (1996) (holding that before trial, trial courts are "vested with discretion to allow the prosecution to amend the information or complaint as long as the substantial rights of respondents were not prejudiced"); State v. Wentz, No. 97,080, 2007 WL 1413136, at *3-4 (Kan. App. 2007) (unpublished opinion) (explaining how "[i]n the case of amendments before trial, the courts have loosened the rigidity with which it allows amendments to a complaint or information under K.S.A. 22-3201[e]"). 6
Can Bacon Establish Prejudice? The State originally charged Bacon with one count of aggravated human trafficking that occurred "on or between the 4th day of August, 2014 A.D. and the 5th day of August, 2014 A.D." Three days before trial, however, the State amended the complaint to charge Bacon with two counts of commercial sexual exploitation of a child that both allegedly occurred "on or between the 4th day of August, 2014 A.D. and the 5th day of August, 2014 A.D." K.S.A. 2016 Supp. 21-5426(b)(4), the theory of aggravated human trafficking for which Bacon was original charged, states: "(b) Aggravated human trafficking is human trafficking as defined in subsection (a):.... (4) involving recruiting, harboring, transporting, providing or obtaining, by any means, a person under 18 years of age knowing that the person, with or without force, fraud, threat or coercion, will be used to engage in forced labor, involuntary servitude or sexual gratification of the defendant or another." The relevant provision of subsection (a) defining human trafficking in Bacon's case states that human trafficking is "[t]he intentional recruitment, harboring, transportation, provision or obtaining of a person for labor or services, through the use of force, fraud or coercion for the purpose of subjecting the person to involuntary servitude or forced labor." K.S.A. 2016 Supp. 21-5426(a)(1). Meanwhile, K.S.A. 2016 Supp. 21-6422(a)(4), the theory of commercial sexual exploitation of a child that Bacon was ultimately charged with and convicted of committing, states: "(a) Commercial sexual exploitation of a child is knowingly:... (4) procuring transportation for, paying for the transportation of or transporting any person younger than 18 years of age within this state 7
with the intent of causing, assisting or promoting that person's engaging in selling sexual relations." Clearly, although there are similar elements, aggravated human trafficking and commercial sexual exploitation of a child are not the same crime. Moreover, a person charged with two crimes is charged with more crimes than a person charged with one crime. As a result, the State's assertion that the amendments did not result in charging Bacon with either additional or different crimes is incorrect. Accordingly, we must determine if the State's pretrial amendments that charged both different and additional crimes prejudiced Bacon. Bacon alleges that the trial court erred by allowing the State to amend its complaint because aggravated human trafficking is a broader offense than commercial sexual exploitation of a child. Bacon notes that aggravated human trafficking requires a person to "intentionally" commit the crime while commercial sexual exploitation of a child requires a person to "knowingly" commit the transportation element. In Bacon's brief, Swain argues: "In theory, Defense counsel had ten-days to prepare its defense for an aggravated human trafficking charge, a severity level 1 crime. In reality, however, this time was truncated five days to prepare because discovery was not even made available until September 9th 2015. As the defense informed the Court, Bacon never received discovery from Mr. Mamalis despite numerous requests. This five-day window cuts down even more when two days after getting discovery, and three days before trial, the State amended its complaint. Consequently, defense counsel had two days to prepare its case for a completely different charge." Nevertheless, this argument is flawed for multiple reasons. 8
First, in making the argument that aggravated human trafficking is broader than commercial exploitation of a child, Bacon concedes that the two crimes "share some similarity in that each may require the alleged victim to be transported...." This is an argument that the State heavily emphasizes in its brief. Indeed, under a limited theory of aggravated human trafficking, the two crimes are very similar. For instance, a person may be convicted of aggravated human trafficking under K.S.A. 2016 Supp. 21-5426(b)(4) if the following elements exist: The defendant intentionally transported a person; the person was under 18; and the defendant knew the person would be used to engage in the sexual gratification of another. In comparison, a person may be convicted of commercial exploitation of a child if the following elements exist: The defendant knowingly transported a person; the person was younger than 18; and the defendant did so with the intent to assist the person engage in selling sexual relations. Considering these elements, we note that the two crimes are very similar. Consequently, any work that Bacon would have expended in preparing his defense against the charge of aggravated human trafficking would have been beneficial in preparing a defense against the charges of commercial sexual exploitation of a child. That is, although the crimes are slightly different and the culpable mental states differ, the amendment of the complaint would not have resulted in Bacon having to create a whole 9
new theory of defense. Bacon clearly knew the facts of his case, which involved him transporting A.M.H. to Broadway, where A.M.H. then engaged in prostitution. The amendments to the complaint did not change those undisputed facts or made his defense against those facts more difficult. Moreover, as emphasized by the State in its brief, Bacon's argument concerning prejudice is essentially that he over prepared. Clearly, wasting time preparing to defend against a broader crime might be frustrating, but this does not mean that Bacon suffered prejudice at his trial. It merely means that perhaps some areas of his defense were abandoned, or made no longer useful, by the narrower elements of the crimes with which he was subsequently charged. Importantly, nowhere in Bacon's brief has he explained how his theory of defense that he did not intend to assist A.M.H. in engaging in prostitution, but instead intended to protect A.M.H. while engaging in prostitution, changed because of the amendments. Obviously, if Bacon's defense did not alter based on the amendments, he necessarily suffered no prejudice by the amendments. Yet, there are still other notable reasons why Bacon's argument is flawed. For instance, the converse of Bacon's argument that the aggravated human trafficking charge was broader than the commercial sexual exploitation of a child charges is that the commercial sexual exploitation of a child charges were narrower than the aggravated human trafficking charge. In the context of jury instructions, our Supreme Court has held that an instruction that includes narrower elements than what the defendant has been charged with in the complaint cannot result in error because "to the extent the jury instructions narrowed the [elements of a crime], [the defendant's] chance of conviction was reduced." State v. Jones, 279 Kan. 809, 811, 112 P.3d 123 (2005). Likewise, to the extent the amendment narrowed the elements of the crime Bacon was charged with, the 10
elements of the crime he was required to defend against were reduced. This almost certainly helped Bacon clarify his defense. Another important point is that Bacon has in no way argued that the charging of two counts, versus the charging of one count, of commercial exploitation of a child prejudiced his defense. Perhaps this is because he was acquitted of the first count of commercial exploitation of a child. Regardless, if Bacon had an argument why the two counts prejudiced him, he has abandoned it by failing to raise it on appeal. See State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016) (holding that an issue not briefed is deemed abandoned). Additionally, had Bacon made this argument, it would have been meritless because once again, under the amended complaint, Bacon was still defending against the same conduct that occurred on or between August 4, 2014, and August 5, 2014. Thus, although Bacon was charged with more crimes under the amended complaint, both crimes encompassed the same conduct that he was already required to defend against under the single count of aggravated human trafficking. Consequently, Bacon's defense clearly did not change despite being charged with an additional crime. Additionally, any competent defense attorney should have realized that the State might amend its complaint to charge Bacon with two counts as opposed to one count. The State originally charged Bacon with one count of aggravated human trafficking that occurred on or between August 4, 2014, and August 5, 2014. Thus, Bacon had always been charged with a crime that occurred over a 2-day time span. Moreover, at the preliminary hearing, through Detective Baumann's testimony, the fact that Bacon brought A.M.H. to Broadway so she could engage in prostitution on two separate nights came into evidence. Therefore, from the beginning, there was very strong evidence that Bacon committed two separate crimes, one on the first night he brought A.M.H. to Broadway to engage in prostitution and another on the second night he brought A.M.H. to Broadway to engage in prostitution. In short, based on the facts of Bacon's case, a defense attorney could not have been surprised by the State's amendments to the complaint charging 11
Bacon with separate crimes based on each night he drove A.M.H. to Broadway. Consequently, the lack of surprise supports that Bacon's defense preparation was not prejudiced by the amendments. Last, and perhaps most significantly, Swain's comments at the hearing on that motion for continuance definitively establishes that Bacon suffered no prejudice as a result of the amendments. Throughout many sections of his brief, Bacon complains that his new counsel did not receive discovery until Wednesday, September, 9, 2015. Bacon suggests that the late discovery coupled with the limited time to he had to prepare for trial with new counsel establishes that he was prejudiced by the State's amendments to the complaint. Specifically, he alleges that his defense had only 5 days from receiving discovery to prepare for trial, but this time was further cut down to 2 days to prepare for trial when the trial court allowed the State to amend the complaint to include additional and different crimes. In Bacon's brief, Swain alleges that the amendments made 2 days after receiving discovery resulted in the defense being "sent on a 2-day wild goose chase, aka roughly half its total time to prepare" because it had wasted those 2 days before the amendments preparing against a single count of aggravated human trafficking. Nevertheless, at the motion for continuance hearing, which occurred on Friday September 11, 2015, the same day the State amended its complaint, Swain explained that although defense received discovery on Wednesday, "as of [that] moment [she had] not reviewed any of the discovery." Plainly, if defense counsel had not reviewed discovery before the continuance hearing, i.e., before the State amended its complaint, it seems highly unlikely that any trial preparation, let alone substantial trial preparation, had occurred at that point. This leads one to ask the following question: If the defense had not prepared for trial before the State moved to amend the complaint from one count of aggravated human trafficking to two counts of commercial sexual exploitation of a child, how did the defense waste time preparing to defend against the original charge of aggravated human trafficking? The answer is the defense could not have wasted any 12
significant time because all the preparation for Bacon's trial occurred after the State amended its complaint. As a result, Swain's own statements establish that the amendments could not have resulted in prejudice to Bacon because the preparation that went into creating Bacon's defense occurred after the amendments. Moreover, this also means that Swain, in arguing on Bacon's behalf, has yet again distorted the facts of this case because the defense clearly did not go on a 2-day wild goose chase preparing to defend against a single count of aggravated human trafficking between the time the defense received discovery and the State amended the complaint. Conclusion In summary, to establish that the trial court abused its discretion by allowing the State to amend its complaint from one count of aggravated human trafficking to two counts of commercial sexual exploitation of a child, Bacon must show that his substantial rights were prejudiced by the amendment. Bacon, however, has not shown that he suffered any prejudice because of the amendments. In short, aggravated human trafficking and commercial sexual exploitation of a child have many similar elements, and the preparation required to defend against the former would also encompass the preparation required to defend against the latter. Most importantly, based on Swain's own comments, it is readily apparent that little, if any, trial preparation for Bacon's trial occurred before the State amended its complaint. Accordingly, Bacon could not possibly be prejudiced by the amendments. Because Bacon did not suffer prejudice, his argument fails. 13
Did the Trial Court Err by Not Allowing Bacon a New Preliminary Hearing on the Amended Complaint? Bacon next alleges that the trial court erred by denying his motion to dismiss based on the insufficiency of his preliminary hearing. First, Bacon argues that the trial court could not have dismissed his motion under Local Rule 301 of the Criminal Court Rules of Sedgwick County regarding pretrial motions. Then, Bacon argues that the testimony at his preliminary hearing did not provide any evidence that he "acted with the specific intent to assist A.M.H. engage in the selling of sexual relations." Therefore, Bacon concludes that there was no evidence supporting that he committed the commercial sexual exploitation of a child offenses. The State makes three counterarguments. First, the State counters that Bacon has failed to preserve this argument on appeal. Second, the State counters that even if Bacon's argument is preserved, the evidence at his preliminary hearing was sufficient for a probable cause finding. Third, the State counters that even assuming there was error at Bacon's preliminary hearing, Bacon has failed to establish that it resulted in prejudice at his trial. Standard of Review "Under K.S.A. 22-2902(3), the magistrate at a preliminary hearing examines the evidence to determine (1) whether a crime has been committed and (2) whether there is probable cause to believe that the accused committed the crime." State v. Washington, 293 Kan. 732, 733, 268 P.3d 475 (2012). At a preliminary hearing, probable cause "'signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.'" Washington, 293 Kan. at 734. After the trial court has found probable cause to believe the accused committed the crime, a defendant may challenge the sufficiency of the preliminary hearing only in a motion to dismiss filed with the trial court. Washington, 293 Kan. at 734. "'Failure to challenge in this manner amounts to waiver.'" Washington, 293 Kan. at 14
734 (quoting State v. Butler, 257 Kan. 1043, 1059-60, 897 P.2d 1007 [1995]). Appellate courts exercise de novo review over the denial of a motion to dismiss based on insufficient evidence to support a probable cause finding at a preliminary hearing. Washington, 293 Kan. at 734. Did Bacon Raise this Argument Below? The State argues that Bacon did not make this argument below. The State asserts that the only problem with the preliminary hearing Bacon raised below was that the probable cause finding was based almost entirely on hearsay testimony. Bacon, on the other hand, alleges that he challenged the sufficiency of the preliminary hearing as to whether evidence supported that he committed the amended charges of commercial sexual exploitation of a child in a motion to dismiss filed the morning of his trial. The State is correct in that Bacon challenged the sufficiency of the preliminary hearing because the probable cause finding was based on hearsay testimony in his motion to dismiss. Moreover, the State is correct that Bacon no longer challenges the alleged hearsay problems while attacking the sufficiency of the preliminary hearing on appeal. Nevertheless, in Bacon's motion to dismiss, Bacon did argue that the preliminary hearing was insufficient as to the commercial exploitation of a child charges. Specifically, Bacon alleged that even if certain hearsay was admissible, that hearsay was "insufficient to find that the offense of sexual exploitation of a child had been committed." Bacon alleged that there was no evidence indicating that he "enticed, encouraged, coerced, or otherwise persuaded A.M.H. to engage in sexually explicit conduct" or that A.M.H. did in fact "engage[] in a sexually explicit performance." Accordingly, Bacon did make this argument below in his motion to dismiss filed the morning of trial. As a result, the State is incorrect in asserting that Bacon's argument is not properly before this court. 15
Is Bacon's Argument Moot? Our Supreme Court has explained: "As a general principle, after an accused has gone to trial and has been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is considered harmless unless it appears that the error caused prejudice at trial." State v. Jones, 290 Kan. 373, 381, 228 P.3d 394 (2010). Prejudice "at trial" requires a showing of harm during trial. In essence, minor errors that occur at a preliminary hearing are moot if the defendant has been found guilty beyond a reasonable doubt at trial. Consequently, for Bacon's argument to ultimately succeed on appeal, he must establish two things: (1) that error occurred at his preliminary hearing, and (2) that the error resulted in prejudice at his trial. Bacon has failed to establish that the alleged preliminary hearing error resulted in prejudice at his trial. In fact, Bacon has failed to even recognize that he has the burden of establishing that prejudice occurred at his trial in his brief. In short, Bacon's failure to argue how he was prejudiced by the alleged preliminary hearing error at his trial means he has abandoned any argument he may have had regarding such prejudice. See Williams, 303 Kan. at 758. Given that Bacon has failed to meet his burden of establishing prejudice, this court may affirm. Is Bacon's Underlying Argument Meritless? For argument sake, however, even if Bacon's argument was not moot, Bacon's underlying arguments are meritless. If one disregards the alleged misapplication of Local Rule 301, the entirety of Bacon's argument is that no evidence at the preliminary hearing supported that he "intentionally" assisted A.M.H. to engage in the selling of sexual relations. Bacon points out that Detective Baumann "never testified as to why [he] transported A.M.H. on the relevant nights, only that he knew what she was planning on doing." 16
Yet, Detective Baumann's testimony that Bacon told him (1) that he transported A.M.H. to the Broadway area on the nights in question and (2) that he knew A.M.H. was going to engage in prostitution was likely sufficient to make a probable cause finding on the commercial exploitation of a child charges. This evidence in conjunction with Detective Baumann's testimony that Bacon also told him that he had asked A.M.H. to make money, that he had known she was 17 years old, that he had brought A.M.H. to Broadway on two separate nights, that he had taken A.M.H.'s money at the end of both nights, and that he had used A.M.H.'s money to buy things for himself was more than sufficient evidence to make a probable cause finding on the commercial exploitation of a child charges. As noted by the State in its brief, the preceding evidence was highly incriminating. More importantly, the fact that Bacon knowingly transported A.M.H. to Broadway so she could engage in prostitution on two separate nights is incredibly significant because it means that there was probable cause to support that Bacon committed the two separate counts of commercial sexual exploitation of a child under the State's amended complaint. Moreover, Bacon seems to forget that the probable cause finding can be based on circumstantial evidence. See State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). The State may even use circumstantial evidence to establish a defendant's culpable mental state. See State v. Thach, 305 Kan. 72, 84, 378 P.3d 522 (2016) (holding that the State can prove a defendant's culpable mental state, including when the defendant acted "intentionally," entirely with circumstantial evidence). Thus, the evidence at Bacon's preliminary hearing needed only to be sufficient enough to allow a person to infer that Bacon intended to assist A.M.H. in the selling of sexual relations. Certainly, based on Detective Baumann's testimony about Bacon's interview, a person of ordinary prudence and caution could conscientiously entertain a reasonable belief that Bacon committed two counts of commercial sexual exploitation of a child under K.S.A. 2016 Supp. 21-6422(a)(4), one count for each night he drove A.M.H. to Broadway, because the evidence 17
supported that Bacon knowingly transported A.M.H., a 17-year-old girl, with the intent that A.M.H. engage in selling sexual relations. As a result, Bacon's underlying argument that insufficient evidence was presented at his preliminary hearing to bind him over on the commercial sexual exploitation of a child charges is meritless. Did the Trial Court Err in Instructing the Jury? Next, Bacon alleges that the trial court erred when it instructed the jury on the elements of commercial sexual exploitation of a child. Specifically, Bacon argues that because commercial sexual exploitation of a child states that a defendant must commit the act "with the intent to" assist a child to sell sex, the trial court was required to define the term "intentionally" as a culpable mental state within the jury instructions. The State concedes that the trial court could have defined "intentionally," but it argues that the lack of definition "does not translate into a finding that its absence was necessarily reversible error." Standard of Review An appellate court applies the following standard of review when reviewing jury instruction challenges: "'"(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and 18
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)."' [Citation omitted.]" State v. Fisher, 304 Kan. 242, 256-57, 373 P.3d 781 (2016). Neither party disputes that this issue is properly before this court given Bacon's request for the "intentionally" definition instruction below. Moreover, neither party disputes that the requested instruction on the "intentionally" definition was both legally and factually appropriate. Nevertheless, the State makes the concession that the trial court could have provided the jury with an instruction on the definition of "intentionally" as a culpable mental state with an important caveat: "'With the intent to' is not a highly technical concept, but amounts to mere ordinary words to which the jury can assign their ordinary meanings, to effectively and accurately analyze the offense within the facts of the case." Indeed, this is an incredibly important factor in determining if the trial court erred. To review, K.S.A. 2016 Supp. 21-6422(a)(4), the crime of commercial sexual exploitation of a child for which Bacon was convicted, states: "(a) Commercial sexual exploitation of a child is knowingly:... (4) procuring transportation for, paying for the transportation of or transporting any person younger than 18 years of age within this state with the intent of causing, assisting or promoting that person's engaging in selling sexual relations." (Emphasis added.) Thus, although one must knowingly help in the transporting of a person younger than 18 years of age to commit the crime, one must also have the intent to cause, assist, or promote the person under 18 years of age in engaging in the sale of sexual relations. Both of the commercial sexual exploitation of a child instructions given by the trial court were identical. Moreover, both instructions conformed to PIK Crim. 4th 64.091, which outlines the commercial sexual exploitation of a child instruction, and PIK 19
Crim. 4th 52.010, which outlines the definition of "knowingly" as a culpable mental state. The entirety of the commercial sexual exploitation of a child instructions at issue stated: "The defendant is charged with commercial 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 knowingly transported A.M.H. within this state with the intent of assisting A.M.H. to engage in selling sexual relations. "2. At the time of the act, A.M.H was less than 18 years old. The State need not prove the defendant knew the child's age. "3. This act occurred on or between the 4 th day of August, 2014, and the 5 th day of August, 2014, in Sedgwick County, Kansas. "A defendant acts knowingly when the defendant is aware[:] of the nature of his conduct that the State complain[ed] about; of the circumstances in which he was acting; or that his conduct was reasonably certain to cause the result complained about by the State." Accordingly, the jury was instructed on all of the elements of commercial sexual exploitation of a child, including that Bacon had to specifically intend to assist A.M.H. in selling sexual relations. As a result, despite Bacon's best efforts to argue otherwise, this is not a case where the jury was not instructed on an essential element of the crime. Instead, Bacon's argument only involves whether the jury misunderstood the meaning of "intentionally," given that it was not provided with a definition in the instructions. K.S.A. 2016 Supp. 21-5202(h), the statute that defines "intentionally" and "with the intent to" as a culpable mental state, provides: "A person acts 'intentionally,' or 'with intent,' with respect to the nature of such person's conduct or to a result of such person's 20
conduct when it is such person's conscious objective or desire to engage in the conduct or cause the result." Yet again, as the State has argued, the meaning of "intentionally" or "with the intent to" is not highly technical. Generally, jurors are "expected to decipher many difficult phrases without receiving specific definitions." State v. Robinson, 261 Kan. 865, 877, 934 P.2d 38 (1997). More importantly, although not explicitly addressed by the State in its brief, it is a longstanding rule of this court that trial courts only have a duty to define words within an instruction "'when the instructions as a whole would mislead the jury, or cause them to speculate, that additional terms should be defined.'" State v. Armstrong, 299 Kan. 405, 440, 324 P.3d 1052 (2014) (quoting State v. Norris, 226 Kan. 90, 95, 595 P.2d 1110 [1979]). Based on this rule, this court has concluded that trial courts are not required to define a word used in an instruction unless the meaning of the word under the commonly understood lay definition differs from the meaning of the word under its legal definition. State v. Patton, 33 Kan. App. 2d 391, 397, 102 P.3d 1195 (2004). In other words, the failure to give a definitional instruction cannot be erroneous unless the legal definition of the word at issue means something different in layman's terms. In regards to the trial court's duty to define "intentionally" as a culpable mental state, this court has previously rejected this argument. For example, in State v. Morehead, No. 97,960, 2008 WL 2510576 (Kan. App.) (unpublished opinion), rev. denied 287 Kan. 768 (2008), Moorhead had been charged and convicted of aggravated battery, which requires a person to "intentionally" cause another bodily harm. Moorhead appealed, arguing that the trial court erred by failing to instruct the jury on the definition of "intentional." The Moorhead court, however, disagreed with Moorhead's argument. Noting that trial courts are not required to define words unless the lack of definition would cause confusion, the Moorhead court explained that the term "intentional" is both "widely used" and "readily comprehensible," meaning no defining instruction was 21
required. 2008 WL 2510576, at *5. The Moorhead court further noted that Moorhead's argument seemed particularly weak given that he did not allege that the term "intentional" meant something different when used in criminal elements instructions than in layman's terms. 2008 WL 2510576, at *5. More recently, relying on Moorhead, this court again rejected that the trial court had a duty to define "intentionally" in State v. Hanks, No. 114,640, 2016 WL 4585620, at *3-4 (Kan. App. 2016) (unpublished opinion). Convincingly, the Hanks court pointed out that the legislature's definition of "intentionally" under K.S.A. 2015 Supp. 21-5202 did not differ from the definition of the term as used by nonlawyers in Webster's II New College Dictionary 576, 610, and 926 (1995). 2016 WL 4585620, at *4. This case is no different than Moorhead and Hanks. Bacon takes issue with the fact the definition of "intentionally" was not provided to the jury. Yet, Bacon has provided absolutely no argument as to why the trial court was required to instruct the jury on the definition of "intentionally." The closest thing to an argument Bacon makes is that because the trial court defined "knowingly" it should have also defined "intentionally," and in turn, its failure to define "intentionally" likely led the jury to believe that the only culpable mental state at issue was "knowingly." Nevertheless, this argument is purely speculative. Furthermore, the argument in no way addresses why the jury would not have understood the phrase "with the intent to" given that the phrase means the same thing under both its legal definition and its layman's definition. Once more, a trial court's decision not to give an instruction defining a term cannot be deemed erroneous unless the legal definition and layman's definition of the word at issue differ. Patton, 33 Kan. App. 2d at 396. Consequently, by failing to provide any explanation why the jury needed to be instructed on the definition of "intentionally," Bacon has failed to brief the single argument that is required to establish the trial court erred. In turn, by failing to brief this argument, he has abandoned his argument on appeal. 22
See Williams, 303 Kan. at 758 (holding that an issue not briefed is abandoned). Moreover, even if Bacon had not abandoned his argument, his argument would still fail because, as addressed in Moorhead and Hanks, the definition of "intentionally" means the same thing under its legal definition and layman's definition, meaning no jury instruction on the definition was required. For these reasons, the trial court did not err when it denied Bacon's request for an instruction on the definition of "intentionally" as a culpable mental state. Can Bacon Establish Harm? Assuming arguendo that Bacon established that the trial court erred by failing to instruct the jury on the definition of "intentionally," Bacon would still not be entitled to reversal. Despite Bacon's argument that this court should use the constitutional harmless error standard because the lack of definition "functionally prevented the jury from returning a verdict which would be capable of finding Bacon guilty of all the essential elements of the charged crimes," the jury was instructed on all the elements of commercial sexual exploitation of a child. Consequently, Bacon's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution were not violated. See Hanks, 2016 WL 4585620, at *4 (holding the lack of definitional instruction does not constitute a constitutional error). As a result, under Ward, the jury instruction error would only result in reversible error if there was a reasonable probability that the error affected the outcome of the trial in light of the entire record. See State v. Ward, 292 Kan. 541, Syl. 6, 256 P.3d 801 (2011). In this case, the evidence against Bacon was damning. Highly summarized, the evidence established the following: (1) that Bacon asked A.M.H. to contribute to him financially; (2) that after A.M.H. suggested she could prostitute herself, Bacon did not stop A.M.H., but instead he drove her to an area known for prostitution; (3) that Bacon told A.M.H. to make him money; (4) that Bacon told A.M.H. what to charge for oral and 23
vaginal sex; (5) that Bacon gave A.M.H. a pen in case anyone became violent with her; (6) that after A.M.H. engaged in prostitution, Bacon took the money A.M.H. had received and used it to buy himself different things; and (7) that Bacon did the preceding things on two consecutive nights. Additionally, Bacon never contested the fact that he drove A.M.H. to Broadway knowing that she was going to engage in prostitution, nor did he contest the fact that he took the money A.M.H. received at the end of the night. Instead, the only thing Bacon contested was whether he drove A.M.H. to Broadway to "assist" her in prostitution or to "protect" her while she engaged in prostitution. As to this last contested fact, this is something Bacon emphasizes in his brief in arguing that the failure to instruct the jury on the definition of "intentionally" was not harmless. Bacon points out that "[t]he defense's theory was premised solely on the issue of whether [he] had the specific intent to assist A.M.H.'s decision to engage in prostitution." Yet, in making this argument, Bacon ignores that a person may both intend to assist a person engage in prostitution and also intend to protect that person as the person engages in prostitution. Having the intent of one does not mutually exclude having the intent of the other. Additionally, Bacon's act of taking the money at the end of the night, especially the second night, undoubtedly establishes that he drove A.M.H. to Broadway to assist her in engaging in prostitution since he benefited from the act. Bacon makes two other arguments concerning why the instruction error was not harmless: (1) The jury must have been confused because otherwise it would not have returned a split verdict, and (2) the jury must have been confused based on its question about whether Detective Brown asked Bacon why he drove A.M.H. to Broadway. Bacon's first argument is speculative as only the jury would know for sure why it returned a split verdict. His first argument also ignores that there was clearly a reason why the jury found him guilty on the second count of commercial exploitation of a child. Moreover, concerning the jury question, the jury could have asked this question for a variety of reasons, including because it wanted to determine whether there were 24
inconsistencies in Bacon's statements. Finally, both arguments are conclusory because the arguments assume that the split verdict and question stemmed from the jury's confusion without any evidence that the jury's confusion resulted in the split verdict and question. It is a well-known rule that conclusory contentions without evidentiary support do not entitle defendants to relief. See State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015). Thus, these two arguments are unconvincing to say the least. As a result, none of the arguments Bacon has made regarding why the failure to give the instruction on the definition of "intentionally" prejudiced him are persuasive. Therefore, what remains is the overwhelming evidence that Bacon committed commercial sexual exploitation of a child. Based on this overwhelming evidence, we hold that if the trial court erred by failing to instruct the jury on the definition of "intentionally," this error was harmless because there was no reasonable possibility that the error affected the outcome of Bacon's trial. Was Bacon's Conviction Supported by Sufficient Evidence? Next, Bacon argues that there was insufficient evidence to support his conviction of commercial sexual exploitation of a child. This argument is closely related to Bacon's arguments about why the trial court's failure to instruct the jury on the definition of "intentionally" was not harmless as Bacon reemphasizes that he "accompanied" A.M.H. to Broadway "out of fear for her safety." Bacon argues that because he transported A.M.H. to Broadway not with the intent to assist her engage in prostitution, but with the intent to protect her as she engaged in prostitution, sufficient evidence did not exist. Bacon further argues that the fact he took the money A.M.H. received at the end of the night does not mean that he intended to assist her in engaging in prostitution because he also would have taken any money A.M.H. received had she "took him up on his offers to help find her legitimate work." Thus, Bacon does not contest that sufficient evidence existed supporting that he transported A.M.H. so she could engage in prostitution. 25
Instead, his only argument is that the element that he intended to assist A.M.H. to engage in prostitution is missing. Standard of Review Appellate courts review a sufficiency of the evidence challenge to determine if in the light most favorable to the State, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015). While engaging in this review, courts will not reweigh evidence. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016). Sufficient Evidence Supported Bacon's Conviction Bacon's case, however, is not one of those rare cases where the testimony was so incredible that no reasonable factfinder could have found him guilty beyond a reasonable doubt. For starters, as already noted, Bacon's argument that he could not have intended to assist A.M.H. to engage in prostitution because he intended to protect A.M.H. while she engaged in prostitution ignores that a person can both intend to assist a child in engaging in prostitution while also intending to provide physical protection for the child while engaging in prostitution. Likewise, the fact that Bacon would have taken the money A.M.H. received had she earned it someway other than prostitution does not mean that Bacon could not have intended to assist A.M.H. engage in prostitution. Furthermore, as previously noted, the State may establish that the defendant acted with the requisite mental state required to commit the crime through circumstantial evidence. See Thach, 305 Kan. at 83-84. Thus, the fact that there was no evidence that Bacon ever stated he intended to help A.M.H. engage in prostitution does not mean that the evidence was insufficient to establish his guilt. All that was required was evidence that allowed the jury to reasonably infer that it was Bacon's intention to assist A.M.H. 26