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No. 102,923 IN THE COURT OF APPEALS OF THE STATE OF KANSAS DAVID CROWTHER, Appellant, v. STATE OF KANSAS, Appellee.

SYLLABUS BY THE COURT 1. Claims not raised on appeal are deemed waived or abandoned.

2. When the district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief.

3. A district court is required to conduct a hearing on a K.S.A. 60-1507 motion unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. K.S.A. 60-1507(b); see Supreme Court Rule 183(f) (2010 Kan. Ct. R. Annot. 255). It is error to deny a K.S.A. 60-1507 motion without a hearing where the motion alleges facts that do not appear in the original record that if true, would entitle the movant to relief and the motion identifies readily available witnesses whose testimony would support such facts or other sources of evidence.

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4. A claim of ineffective assistance of counsel presents mixed questions of fact and law. This court therefore reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.

5. To support a claim of ineffective assistance of counsel, it is incumbent upon a defendant to prove that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the defendant and deprive the defendant of a fair trial. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

6. The first prong of the test for ineffective assistance of counsel requires a showing that counsel made errors so serious that his or her performance was less than guaranteed to the defendant by the Sixth Amendment to the United States Constitution. State v. Mathis, 281 Kan. 99, 109, 130 P.3d 14 (2006).

7. Once a defendant has established counsel's deficient performance, under the second prong of the test for ineffective assistance of counsel the defendant also must establish prejudice by showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

8. There is no basis for a claim of ineffective assistance of counsel based on the failure to foresee a change in the law that will not occur until sometime in the future. 2

However, a lawyer's failure to foresee a change in the law may lead to K.S.A. 60-1507 relief if the failure was not objectively reasonable.

9. The Fourth Amendment to the United States Constitution requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging in a person's belongings. A warrant for computer searches must affirmatively limit the search to evidence of specific types of material. Officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant.

10. The good-faith exception to the exclusionary rule under the Fourth Amendment to the United States Constitution should not be applied to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid, except where: (1) the magistrate issuing the warrant was deliberately misled by false information; (2) the magistrate wholly abandoned his or her detached or neutral role; (3) there was so little indicia of probable cause contained in the affidavit that it was entirely unreasonable for the officers to believe the warrant was valid; or (4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized.

11. A movant must address the prejudice prong of an ineffective assistance of counsel claim and demonstrate trial counsel's failure to file a motion to suppress was so serious as to prejudice his right to a fair trial.

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12. A contemporaneous objection to alleged prosecutorial misconduct is not required to preserve the issue for direct appeal if the prosecutor's statements violated the defendant's right to a fair trial; an appellate court applies the same standard of review regardless of whether the defendant lodged an objection.

13. Even if trial counsel's performance was deficient in failing to object to prosecutorial misconduct at trial, the movant cannot establish the prejudice prong of the test for ineffective assistance of trial counsel on this issue because the standard of appellate review would have remained the same if the prosecutorial misconduct issue had been raised on direct appeal in the absence of an objection.

14. Aggravated kidnapping is kidnapping, as defined in K.S.A. 21-3420, "when bodily harm is inflicted upon the person kidnapped." K.S.A. 21-3421. To prove attempted aggravated kidnapping, the State is required to prove a defendant committed an overt act toward the perpetration of the kidnapping but failed in the perpetration thereof. See K.S.A. 21-3301(a).

15. Unnecessary acts of violence upon a victim that occur during the process of abduction not merely incidental to kidnapping may constitute the element of bodily harm to support an aggravated kidnapping charge.

16. Under the facts of this case, the movant has failed to allege or offer proof of any prejudice as a result of any ineffectiveness by trial counsel. He has not demonstrated that there is a reasonable probability that, but for counsel's deficient performance, the result of 4

the criminal proceeding would have been different. He has failed to meet his burden to allege facts sufficient to warrant an evidentiary hearing. The movant's K.S.A. 60-1507 motion together with the files and records of the case conclusively show that he was not entitled to relief.

Appeal from Johnson District Court; JOHN P. BENNETT, judge. Opinion filed March 25, 2011. Affirmed.

Jason B. Billam, of Billam & Henderson, LLC, of Olathe, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, Steve Six, attorney general, for appellee.

Before STANDRIDGE, P.J., MCANANY, J., and KNUDSON, S.J.

KNUDSON, J.: The district court granted summary dismissal of David Crowther's K.S.A. 60-1507 motion. On appeal, Crowther contends his claim of ineffective assistance of trial counsel cannot be determined without an evidentiary hearing. We disagree and affirm the judgment of the district court.

The underlying criminal proceeding Following a jury trial in August 2004, Crowther was convicted of attempted aggravated kidnapping, aggravated arson, aggravated battery, criminal threat, and seven counts of violating a protective order. The facts underlying these convictions are provided in State v. Crowther, No. 93,747, unpublished opinion filed August 4, 2006, rev. denied 282 Kan. 792 (2006).

On direct appeal, Crowther argued there was insufficient evidence to support his convictions for aggravated battery and criminal threat. He also argued the district court 5

erred in permitting the State to introduce prejudicial and irrelevant evidence. Our court rejected these arguments and affirmed Crowther's convictions. Slip op. at 17.

Crowther's K.S.A. 60-1507 motion was dismissed without a hearing In August 2007, Crowther filed this K.S.A. 60-1507 motion alleging: (1) there was insufficient evidence to support his conviction of aggravated arson; (2) there was insufficient evidence to support his conviction of aggravated kidnapping; (3) overt acts alleged by the State were based on improper inferences; (4) his convictions of aggravated battery and aggravated attempted kidnapping were multiplicitous; and (5) ineffective assistance of counsel.

The district court denied the motion without granting an evidentiary hearing or appointing counsel. The court found the first three contentions in Crowther's motion were trial errors. The court further found Crowther failed to show any exceptional circumstances excusing his failure to raise those contentions on direct appeal and declined to address the merits of the arguments. Regarding Crowther's multiplicity claim, the district court concluded that Crowther's precise argument had been previously considered and rejected by a panel for this court. The district court also rejected all of Crowther's claims of ineffective assistance of counsel.

Crowther's appeal to this court On appeal, Crowther has elected to only pursue his claims of ineffective assistance of trial counsel. Consequently, the other claims in his K.S.A. 60-1507 motion are deemed waived or abandoned. See State v. Martin, 285 Kan. 994, 998, 179 P.3d 457, cert. denied 129 S. Ct. 192 (2008).

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Standard of Review A district court is required to conduct a hearing on a K.S.A. 60-1507 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." K.S.A. 60-1507(b); see Supreme Court Rule 183(f) (2010 Kan. Ct. R. Annot. 255). It is error to deny a K.S.A. 60-1507 motion without a hearing where the motion alleges facts that do not appear in the original record that if true would entitle the movant to relief and the motion identifies readily available witnesses whose testimony would support such facts or other sources of evidence. Swenson v. State, 284 Kan. 931, 939, 169 P.3d 298 (2007). When the district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).

Legal Standards Governing Ineffective Assistance of Counsel A claim of ineffective assistance of counsel presents mixed questions of fact and law. We review the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo. Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).

To support a claim of ineffective assistance of counsel, a claimant must prove that (1) counsel's performance was deficient and (2) counsel's deficient performance was prejudicial and deprived the claimant of a fair trial in the underlying criminal proceeding. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).

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The first prong of the test for ineffective assistance of counsel requires a showing that counsel made errors so serious that his or her performance was less than guaranteed by the Sixth Amendment to the United States Constitution. State v. Mathis, 281 Kan. 99, 109, 130 P.3d 14 (2006). This prong requires a showing that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Our scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. This court indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.

The second prong of the test for ineffective assistance of counsel requires a showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Bledsoe, 283 Kan. at 90.

Crowther's Specific Allegations of Ineffective Assistance 1. Failing to file motion to suppress evidence Crowther first alleges trial counsel was ineffective for failing to file a motion to suppress evidence seized pursuant to the execution of a search warrant allowing officers to seize and search Crowther's computer hard drive.

On April 14, 2004, the district court in Jackson County, Missouri, issued a warrant for the search of Crowther's apartment located in Kansas City, Missouri. The warrant described the property to be seized and searched as follows: 8

"Computer hardware consisting of all such equipment that can collect, analyze, create, display, convert, conceal, or transmit electronic, magnetic, optical, or similar computer impulses or data, to include but are not limited to desktop/laptop/handheld computers, PDA's (Personal Data Assistants), cellular/digital telephones, pagers and digital cameras/camcorders and recorders; "Internal and peripheral storage devices, such as hard drives, floppy disks, zip disks, DVD-R/+R/RW and RAM, CR-R/CD-RW disks, data cartridges, compact flash memory cards, memory sticks, USB drives and other magnetic media and non-volatile memory storage devices; "Peripheral input/output devices, such as a mouse, keyboard, printers, fax machine, digital camera, stylus, digitizing tablet, scanner, video display monitor, head mounted displays, optical readers and reproducing devices capable of interfacing with computers and related communications devices that can be used to transmit or receive information to or from a computer; "Commercial software located at the scene related to the investigated offense and is capable of being installed onto or utilized with recovered computer hardware or storage devices."

Upon execution of the warrant, law enforcement recovered from Crowther's computer a program called Realtime Spy that is used to track e-mails and capture screens off another person's computer. Law enforcement also recovered a file showing Crowther ordered a stun gun on March 9, 2004, to be shipped to him by second-day air, nude photographs of the victim, information showing thousands of hits for the website Match.com, and information revealing that Crowther's computer was used to log onto Match.com. Patrick Foster, a detective with the Olathe Police Department, testified at Crowther's trial regarding the files and information recovered from Crowther's computer.

Crowther contends the search warrant failed to describe with sufficient particularity the evidence to be seized from Crowther's computer. In support of this argument, Crowther cites State v. Rupnick, 280 Kan. 720, 125 P.3d 541 (2005). In Rupnick, our Supreme Court cited United States v. Walser, 275 F.3d 981, 986 (10th Cir. 9

2001), cert. denied 535 U.S. 1069 (2002), for the proposition that "'officers conducting searches (and the magistrates issuing warrants for those searches) cannot simply conduct a sweeping, comprehensive search of a computer's hard drive.'" 280 Kan. at 732. Crowther argues that the warrant authorized a general and random search of computer files. As a consequence, Crowther contends the warrant was fatally defective and counsel was ineffective for failing to file a motion to suppress evidence recovered from the search.

The district court did not address Crowther's ineffectiveness claim in detail. The district court found that the Rupnick decision was filed December 16, 2005, and that Crowther's trial was in August 2004. The district court concluded that Crowther's counsel could not be ineffective for failing to foresee changes in the law.

Crowther contends the district court erred because the particularity requirement to support a search warrant is fundamental under the Fourth Amendment to the United States Constitution. He argues that an evidentiary hearing is necessary to determine why trial counsel did not file a motion to suppress evidence unlawfully seized from the exploratory search of his computer.

In Baker v. State, 20 Kan. App. 2d 807, 811, 894 P.2d 221, rev. denied 257 Kan. 1091 (1995), our court held there is no basis for a claim of ineffective assistance of counsel based on the failure to foresee a change in the law that will not occur until sometime in the future. However, "a lawyer's failure to foresee a change in the law may lead to 60-1507 relief if the failure was not objectively reasonable." Laymon v. State, 280 Kan. 430, 439-40, 122 P.3d 326 (2005).

The Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging in a person's belongings. United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999). Tenth 10

Circuit Court of Appeals case law requires that warrants for computer searches must affirmatively limit the search to evidence of specific types of material. Walser, 275 F.3d at 986; United States v. Campos, 221 F.3d 1143, 1147-48 (10th Cir. 2000). Officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant. Walser, 275 F.3d at 986; Carey, 175 F.3d at 1276.

Here, the warrant did not list with particularity the types of files to be seized from Crowther's computer. The warrant listed the property to be seized, including desktop and laptop computers, zip disks, and USB drives, but it did not limit the search of that property to certain items relating to Crowther's alleged criminal activity. From the language of the warrant, it is not clear as to what officers were seeking on the computer. The warrant was not limited to any particular files or any particular crime and authorized an unfocused inspection of all Crowther's files. Cf. Campos, 221 F.3d at 1147. This unfocused inspection allowed "a general exploratory rummaging" through Crowther's computer hardware and software devices which the warrant requirement was designed to prevent. See Carey, 172 F.3d at 1272.

The State also argues that the police officers executing the warrant acted in good faith under the holding in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677, reh. denied 468 U.S. 1250 (1984). Consequently, trial counsel's failure to file a motion to suppress would have been to no avail and could not constitute ineffective assistance.

"Under the holding in United States v. Leon, [citation omitted], the Fourth Amendment exclusionary rule should not be applied to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid, except where: (1) the magistrate issuing the warrant was deliberately misled by false information; (2) the magistrate wholly abandoned his or her detached or neutral role; (3) there was so little indicia of

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probable cause contained in the affidavit that it was entirely unreasonable for the officers to believe the warrant was valid; or (4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized." State v. Hoeck, 284 Kan. 441, Syl.

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