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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 101,719 STATE OF KANSAS, Appellee, v. STEVEN R. HERNANDEZ, Appellant.

SYLLABUS BY THE COURT 1. It is a legal impossibility for a defendant to be guilty of both attempting the commission of a crime and completing the commission of the same crime, because the failure to complete commission of the crime is an element of attempt.

2. When a jury, contrary to the court's instructions, finds a defendant guilty of both the completed crime and an attempt of the same crime, it is the duty of the trial court to order the jury to reconsider and correct its verdict.

3. Proving a defendant's age of 18 or older is an element of the off-grid Jessica's Law aggravated indecent liberties offense. When the trial record shows evidence of age that was overwhelming and essentially uncontroverted, the error of not giving a jury instruction on the element of age in Jessica's Law cases may be harmless. If the trial record does not include such evidence, the defendant may be exposed to punishment only for the on-grid form of the crime.

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Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed April 12, 2012. Affirmed in part, reversed in part and remanded.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: In Sedgwick County District Court case No. 07CR3805, Steven R. Hernandez was charged with aggravated indecent liberties with a child. After the trial, the jury returned guilty verdicts on both aggravated indecent liberties with a child and the lesser included offense, attempted aggravated indecent liberties with a child. The trial court imposed a life sentence, without possibility of parole for 25 years, for aggravated indecent liberties with a child.

In an unrelated case, case No. 07CR2807, Hernandez pleaded guilty to aggravated sexual battery. In that case, the trial court imposed a sentence of 32 months' incarceration, to run consecutive to his sentence in case No. 07CR3805. On Hernandez' motion, the trial court consolidated these two cases for appeal.

On the aggravated indecent liberties conviction, we consider the issues raised by the inconsistent jury verdicts and the failure to prove Hernandez' age. That conviction is reversed and remanded. On the aggravated sexual battery conviction, we affirm the trial court's use of criminal history for sentencing.

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FACTUAL AND PROCEDURAL HISTORY

On October 9, 2007, Steven Hernandez pleaded guilty to aggravated sexual battery in case No. 07CR2807. This charge was based on events occurring September 8, 2007, with L.M.C., a 17-year-old female. Hernandez was released on bond pending sentencing.

On December 15, 2007, while on bond and awaiting sentencing in 07CR2807, Hernandez called R.F. several times to see about getting together. Hernandez eventually went to R.F.'s home to visit him. R.F. had been friends with Hernandez' grandfather for about 15 years and had known Hernandez for several years. R.F. testified that Hernandez knew his oldest son and had met his oldest daughter previously but Hernandez did not know the two younger children who were at home that night. R.F. introduced Hernandez to his youngest daughter, V.F., age 11, and his youngest son, age 7.

R.F. and Hernandez sat at the table drinking beer and talking until R.F.'s wife, B.F., got home from work. B.F. put the younger children to bed and then watched a movie on television in the living room, where R.F. and Hernandez joined her. Eventually, both R.F. and B.F. went to bed and left Hernandez to sleep on the sofa.

V.F. testified that she went to sleep that night wearing her panties, bra, and a shirt. She woke up when Hernandez, identifying himself as one of her older brothers, asked to lie down with her. V.F. allowed him to lie on top of the covers, as she often let her brother share her bed on top of the covers. Hernandez lay down touching V.F.'s buttocks with the back of his hand; V.F. described this contact as accidental. He then got close to V.F. and hugged her with one arm, pressing his chest against her back and placing his hand on her stomach. Suspecting that the person in her bed was not one of her brothers, V.F. made an excuse about getting her MP3 player and got out of bed. She turned on the lights and saw Hernandez lying naked on top of her bed. She ran to her parents' room and woke her mother.
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B.F. testified that V.F. woke her saying, "Mom, he's in my bed and he's naked." B.F. went into V.F.'s room and saw Hernandez "stark naked" on top of the covers of her daughter's bed. She then woke R.F., who began arguing with Hernandez. B.F. hit Hernandez several times before calling the police.

Hernandez was charged with one count of aggravated indecent liberties with a child, an off-grid person felony, based on the December incident with V.F. Over Hernandez' objection at trial, the jury was instructed on both aggravated indecent liberties and the lesser included offense of attempted aggravated indecent liberties. On separate pages of the verdict form, the jury returned guilty verdicts on both charges. Hernandez moved for a mistrial, claiming that there was a fundamental error in the jury verdicts. In response, the State likened the situation to one where a defendant is charged with alternative counts and the jury convicts on both alternative counts. The court denied Hernandez' motion for mistrial and set the matter for further argument at sentencing.

At sentencing, the court denied Hernandez' motions for new trial, judgment of acquittal, and sentence departure, and imposed a life sentence on the aggravated indecent liberties with a child conviction in case No. 07CR3805. The court also imposed the presumptive sentence of 32 months for the aggravated sexual battery in case No. 07CR2807, to be served consecutive to the life sentence. The cases were consolidated for appeal on Hernandez' motion. Further facts will be presented as necessary for the analysis.

INCONSISTENT VERDICTS

Over Hernandez' objection, the trial court instructed the jury on the lesser included offense of attempted aggravated indecent liberties with a child. The jury instructions did not include PIK Crim. 3d 68.09, which is the pattern instruction that explains how a jury
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should consider lesser included offenses. Contrary to PIK Crim. 3d 68.10, which provides a single comprehensive verdict form for each criminal offense charged, including any lesser included offenses, the court provided the jury with two separate verdict forms. Hernandez did not request PIK Crim. 3d 68.09 or object to the verdict forms. The verdict forms, each presented to the jury on separate sheets of paper, read:

"VERDICT _____ We, the jury, find the defendant guilty of aggravated indecent liberties with a child. _____ We, the jury, find the defendant not guilty of aggravated indecent liberties with a child. .... If the jury finds the defendant not guilty of aggravated indecent liberties with a child, please complete Verdict Form B."

"VERDICT (Form B) _____ We, the jury, find the defendant guilty of attempted aggravated indecent liberties with a child. _____ We, the jury, find the defendant not guilty of attempted aggravated indecent liberties with a child."

Contrary to the language on the bottom of the first verdict form, the jury returned a guilty verdict on both forms. After reviewing the completed verdict forms, the court held a brief off-the-record discussion with counsel outside the hearing of the jury and the court reporter. The court read the verdicts into the record and discharged the jury. After the jury left the courtroom, the court referred back to the off-the-record discussion and asked the parties to restate their arguments. The State argued that the verdicts were not a problem, as this was similar to a situation where the State charged a case under alternative theories; therefore, any problem with the verdicts could be addressed at sentencing. Defense counsel argued that Hernandez had not been charged under

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alternative theories in this case; therefore, the two inconsistent verdicts caused a fatal problem, resulting in Hernandez' request for a mistrial.

The court denied the motion for a mistrial and set the matter for further hearing at sentencing. The trial court proceeded to treat these verdicts as guilty verdicts on alternative charges, even though Hernandez was only charged with the completed crime. The attempted aggravated indecent liberties with a child instruction was given, over the defendant's objection, as a lesser included charge. Because Hernandez was not charged with aggravated indecent liberties or, in the alternative, attempted aggravated indecent liberties, the trial court could not correct this problem at sentencing.

It is a legal impossibility to both attempt the commission of a crime and complete the commission of the same crime, because the failure to complete commission of the crime is an element of attempt. See PIK Crim. 3d 55.01(3). As Professor Paul H. Robinson put it: "It is almost universally the rule that a defendant may not be convicted of both a substantive offense and an inchoate offense designed to culminate in that same offence." 1 Robinson, Criminal Law Defenses

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