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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 100,402 STATE OF KANSAS, Appellee, v. JOSE JUAN HUERTA-ALVAREZ, Appellant.

SYLLABUS BY THE COURT 1. Whether an information is sufficient to confer subject matter jurisdiction is a question of law over which an appellate court has unlimited review.

2. The test used to evaluate the sufficiency of the charging document depends upon when the issue was first raised. When the charging document is challenged for the first time on appeal, the defendant must show that the alleged defect either: (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial.

3. The validity of a charging instrument is to be tested by reading the document in its entirety, and the elements of the offense may be gleaned from the document as a whole.

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4. Instructions are erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.

5. Although failure to instruct a jury on an element of the crime is error, that error is subject to constitutional harmless error analysis.

6. The right to trial by jury guaranteed by the Sixth Amendment to the United States Constitution, applicable to the States under the Fourteenth Amendment to the United States Constitution, requires that any fact which enhances the sentence imposed beyond the statutory maximum must be found by a jury.

7. When the trial court fails to instruct the jury to determine whether a sentenceenhancing fact exists, the appellate court will apply harmless error analysis. The finding of harmless error occurs when the evidence before the jury of the sentence-enhancing fact was overwhelming and essentially uncontroverted, leading the court to conclude that the jury would have found the existence of the fact had it been properly instructed.

8. When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether after reviewing all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. 2

9. A contemporaneous objection must be made to all evidentiary claims--including questions posed by a prosecutor and responses to those questions--to preserve the issue for appellate review.

10. No contemporaneous objection is required, however, to review for misconduct a prosecutor's statements made during closing argument.

11. Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury during closing argument requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.

12. In the second step of the two-step analysis for prosecutorial misconduct, the appellate court considers three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two

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factors unless the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met.

13. When a defendant claims that a prosecutor committed reversible misconduct, the prejudicial nature of alleged errors is analyzed in the context of the trial record as a whole.

Appeal from Sedgwick District Court; CLARK V. OWENS II, judge. Opinion filed October 1, 2010. Dismissed in part, convictions affirmed, sentence vacated in part and case remanded with directions.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Boyd K. Isherwood, 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.: Jose Juan Huerta-Alvarez appeals from two convictions of aggravated indecent liberties with a child contrary to K.S.A. 21-3504(a)(3)(A). The dates of the offenses fall on both sides of the date upon which K.S.A. 2006 Supp. 21-4643, known as Jessica's Law, became effective; consequently, he was sentenced to 61 months, the high end of the Kansas sentencing guidelines grid box, on one count, and to life with a hard 25 under K.S.A. 2006 Supp. 21-4643 on the other count. He raises several issues on appeal. Our jurisdiction is under K.S.A. 22-3601(b)(1).

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FACTS

On December 16, 2006, Wichita police officer Eric Noack was dispatched to 1017 S. Woodlawn on a check the welfare call. When he arrived he found 13-year-old B.N., who was locked out of her residence and who told him she did not know where her mother was. According to Officer Noack, no other adults were present when he arrived. Eventually, B.N.'s grandparents, mother, and uncle all arrived.

Officer Noack noticed that B.N.'s mother kept trying to keep B.N. close to her and talk to her, but B.N. appeared uncomfortable with her mother and did not seem to want to talk to her. B.N. had earlier told the officer that the day before her mother had told her to pack her things and get out because B.N. was causing problems between her mother and her mother's boyfriend. The officer took B.N. aside and asked her if she was having problems at home. B.N. told him that she was having problems with her mother's boyfriend. She said that he was making sexual advances toward her.

Because departmental policy called for referring the case immediately to the Exploited and Missing Children Unit (EMCU), Officer Noack did not pursue the topic much farther with B.N. He did, however, get basic information from her about the allegations. B.N. told him that over the previous 6 months there had been several times that the boyfriend had tried to get her to have sex with him, including asking her to touch his penis. She said these things mostly happened at a prior address, which she identified as 1401 South Pinecrest in Wichita.

Officer Noack made arrangements for B.N. to go with her uncle, with whom she was comfortable, and referred the case to the EMCU. Detective Tom Krausch was assigned to the case and over the next few days identified the mother's boyfriend as Jose 5

Juan Huerta-Alvarez, the appellant. He also interviewed B.N. Detective Krausch and B.N. were the State's main witnesses at trial.

The original complaint charged Huerta-Alvarez with one count of rape and two counts of aggravated indecent liberties with a child, all identified as off-grid crimes occurring after July 1, 2006. Following the preliminary hearing, the first amended complaint was filed, which added a count of aggravated criminal sodomy and alternative counts of attempted rape and aggravated indecent liberties. One count of aggravated indecent liberties and the alternative counts of attempted rape and aggravated indecent liberties were identified as off-grid crimes. A second amended complaint was filed following the State's evidence at trial and was necessitated by the fact that the State was unable to get B.N. to repeat testimony she had offered at the preliminary hearing. B.N. was often vague and somewhat contradictory in her various statements about what had happened. The closest she came to establishing dates of any particular incident was to say whether she thought it had occurred when she was living at the Pinecrest address or at the Woodlawn address. Ultimately, in the second amended complaint filed following the presentation of the State's evidence at trial, the State settled upon using dates obtained from Westar utility records to establish the dates of residence at the two addresses and thus the alleged dates of the crimes.

There were three incidents that B.N. recounted with some regularity, however. The first of these incidents occurred at the Pinecrest address where utility records established that her mother had been responsible for the utilities from August 23, 2005, until September 12, 2006. B.N. testified that it was before school in the morning and her mother was not in the house. She came out of the bathroom and discovered HuertaAlvarez naked. She retreated to the bathroom again and yelled at him to get dressed. 6

Eventually he told her he was dressed and she reemerged from the bathroom only to find him still naked. At that point either she ran or he pulled her into the bedroom where he pinned her on the bed and started to disrobe her. She testified that he attempted to put his penis in her vagina but she was able to bite his hand and get away. She grabbed her clothes and ran back to the bathroom. When she emerged again, he had left the apartment and was sitting in his truck outside.

A second incident which B.N. said happened at the Pinecrest apartment involved Huerta-Alvarez sticking his hand down her pants. She testified that his finger penetrated her vagina just a little bit and that it hurt because he has big fingers. The third incident involved Huerta-Alvarez attempting to put his penis in her mouth while she was sitting on the couch. She testified that this incident also occurred at the Pinecrest apartment.

At the urging of the prosecutor, B.N. repeatedly testified that other incidents happened at both the Pinecrest and Woodlawn residences. She also testified, in response to the prosecutor's prompting, that she was not lying and had no reason to make up her story.

Following the State's evidence, the State informed the court and defense counsel that Counts 5 and 6 of the amended complaint would be dismissed since B.N.'s testimony at trial did not support those counts. The second amended complaint, therefore, filed to conform to the evidence the State had presented, alleged the following charges, dates, statutes, and crime severity levels and categories:

I. II. III.

Rape 8/23/05 to 12/16/06; 21-3502(a)(2)(c); SL 1, PF Agg. Indecent Liberties 8/23/05 to 9/12/06; 21-3504(a)(3)(A); SL 3, PF Agg. Criminal Sodomy 8/23/05 to 9/12/06; 21-3506(a)(1); SL 2, PF 7

IV.

Agg. Indecent Liberties 9/19/06 to 12/16/06; 21-3504(a)(3)(A); Off-grid.

All three of the complaints filed in the case contained Huerta-Alvarez' year of birth, 1979, in the caption of the complaint, but none of the counts in any of the complaints alleged that he was over the age of 18 at the time of the offenses. All three of the complaints identify the rape charge as pursuant to K.S.A. 2005 Supp. 213502(a)(2)(c), which identifies an off-grid crime; however, because of the dates alleged, the amended and second amended complaints both identify the crime as a severity level 1 person felony, not as an off-grid crime. None of the counts of aggravated indecent liberties in any of the complaints cite either of the statutory sections, K.S.A. 21-3504(c) and K.S.A. 2006 Supp. 21-4643, that enhance the crimes to off-grid felonies; however, several of the counts, including two counts of aggravated indecent liberties with a child in the original complaint and two counts of aggravated indecent liberties with a child in the amended complaint and Count 4 of the second amended complaint, indicate at the bottom of the page that the sentence is off-grid.

No evidence was presented at trial concerning the defendant's age and nothing in the evidence directly indicated what his age would have been at the time of the alleged offenses. The instructions requested by the defendant did not ask the jury to find the defendant's age. Any instructions requested by the State were not included in the record on appeal. The State had no objections to the instructions proposed and given by the court. The instructions given did not require the jury to find Huerta-Alvarez' age at the time of the offenses.

After having the entire testimony of B.N. read back to it, the jury convicted Huerta-Alvarez of Counts 2 and 4, the aggravated indecent liberties charges. Because of

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the dates alleged in the second amended complaint, the conviction under Count 2 is a severity level 3 person felony, while the conviction under Count 4 is an off-grid offense.

Huerta-Alvarez filed a motion for a downward departure from the life sentence applicable to Count 4. The motion alleges as grounds that the defendant had no prior convictions; that he was acquitted of the rape and criminal sodomy counts, which would normally be thought of as the most serious; and that to impose a life sentence "for a count of fondling when defendant would have received a grid sentence for the count of rape is cruel and unusual punishment" in violation of the Eighth Amendment to the United States Constitution and section 9 of the Kansas Constitution Bill of Rights. The motion further requested that Huerta-Alvarez be sentenced to 55 months, the low grid box number for aggravated indecent liberties.

The district court denied the motion for departure and imposed a life sentence with no chance of parole for 25 years on the primary offense of aggravated indecent liberties with a child contained in Count 4 of the second amended complaint. On Count 2, stating that he was concerned the legislature might change the law back and lower the sentences imposed under Jessica's Law, the court imposed a sentence of 61 months, the high number in the grid box.

Huerta-Alvarez filed a pro se Notice of Appeal Out of Time, to which the State did not object. The defendant was allowed to file his appeal out of time.

ANALYSIS

This is another in the line of cases including State v. Gracey, 288 Kan. 252, 200 P.3d 1275 (2009); State v. Bello, 289 Kan. 191, 211 P.3d 139 (2009); State v. Gonzales, 9

289 Kan. 351, 212 P.3d 215 (2009); and State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009). The appellant was convicted of a sex crime with a child under 14 years of age and sentenced pursuant to K.S.A. 21-4643, Jessica's Law, to a life sentence premised on the fact that he was older than 18 years of age when he committed the offenses, despite the fact that the State did not allege his age in the complaint, and the jury was not instructed to find his age beyond a reasonable doubt. Huerta-Alvarez argues that, as a result, his convictions and sentence violate the Sixth Amendment to the Constitution of the United States and section 10 of the Kansas Constitution Bill of Rights. Although Huerta-Alvarez' brief does not specifically limit his argument to his conviction under Count 4 of the second amended complaint, the argument is of necessity so limited.

Complaint

Huerta-Alvarez argues that the district court did not have jurisdiction to sentence him under K.S.A. 2006 Supp. 21-4643 because the complaint was defective in failing to allege that he was over the age of 18. This court recently reviewed the identical issue in State v. Gracey, 288 Kan. at 254-57, and State v. Gonzales, 289 Kan. at 365-69.

"Whether an information is sufficient to confer subject matter jurisdiction is a question of law over which an appellate court has unlimited review" State v. Gracey, 288 Kan. at 254 (citing State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 [2006]).

"Our review is unlimited where, as in this case, appellate arguments implicate concerns relating to statutory and constitutional interpretation. State v. Bello, 289 Kan. 191, 195, 211 P.3d 139, 142 (2009); State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008) (statutory interpretation is question of law subject to de novo review); State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007) (constitutionality of sentencing statute is question of law subject to unlimited review). Whether a complaint or information is sufficient to confer subject matter jurisdiction is also a question of law and, therefore, the

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same unlimited standard of review applies." State v. Gonzales, 289 Kan. at 365-67 (citing Gracey, 288 Kan. at 254; State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 [2006]).

Huerta-Alvarez was charged in Count 4 of the second amended complaint with aggravated indecent liberties with a child. The complaint identified the count as a violation of K.S.A. 21-3504(a)(3)(A) and as being an off-grid felony but did not specifically allege that Huerta-Alvarez was 18 years of age or older. He was sentenced under K.S.A. 2006 Supp. 21-4643(a)(1)(C), which, by way of K.S.A. 21-3504(c) and K.S.A. 2006 Supp. 21-4706(d), provides the sentence for the off-grid version of K.S.A. 21-3504(a)(3)(A) when the defendant is 18 years of age or older and the victim is under the age of 14. See Bello, 289 Kan. at 197-98.

Huerta-Alvarez does not maintain that the complaint was fatally defective. Rather, he maintains that it charged a valid crime, just not the crime for which he was sentenced. He argues that, therefore, the court lacked jurisdiction to sentence him under K.S.A. 2006 Supp. 21-4643 to a life sentence with no chance of parole for 25 years. He maintains the sentence must be vacated and the case remanded for resentencing under the guidelines grid.

The court considered the identical issue in Gracey.

"The test used to evaluate the sufficiency of the charging document depends upon when the issue was first raised. State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004). When the charging document is challenged for the first time on appeal, the defendant must show that the alleged defect either: (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial. McElroy, 281 Kan. at 261. 'The longer it takes for the defendant to challenge the sufficiency of the information, the greater the presumption of regularity. [Citation omitted.]' State v. Hall,

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246 Kan. 728, 761, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003)." Gracey, 288 Kan. at 254.

The State relies on Gracey to argue that the complaint was sufficient. Huerta-Alvarez raised no objection to the charging document. As in Gracey, he has made no showing that the alleged defect prejudiced his preparation for trial, impaired his ability to plead the conviction in any subsequent prosecution, or limited his substantial rights to a fair trial.

"The validity of a charging instrument is to be tested by reading the document in its entirety, and the elements of the offense may be gleaned from the document as a whole. McElroy, 281 Kan. 256, Syl.

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