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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 100,820 STATE OF KANSAS, Appellee, v. RANDY MARLER, Appellant.

SYLLABUS BY THE COURT

1. K.S.A. 60-404 instructs appellate courts that a defendant's conviction cannot be reversed or set aside by reason of the erroneous admission of evidence, unless the record reflects a timely interposed objection to the evidence and the recorded objection clearly states the specific ground upon which the evidence is claimed to be inadmissible.

2. Where a defendant does not object to an instruction limiting the jury's consideration of the evidence of other crimes or civil wrongs admitted at trial, the defendant may not obtain relief on appeal for any error in the limiting instruction, unless the defendant can establish that there was a real possibility that the jury would have rendered a different verdict without the claimed instruction error.

3. Pursuant to K.S.A. 21-4643(d), the sentencing court shall impose a hard 25 life sentence, unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. A substantial reason is one that is real, not imagined; something of substance, not ephemeral. The term "compelling" implies that the court is forced, by the facts of the case, to leave the status quo or go beyond what is ordinary.

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4. A claim that a sentence is disproportionate and, therefore, constitutes cruel and/or unusual punishment in violation of the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights may not be raised for the first time on appeal, because the issue requires factual findings by the district court.

Appeal from Sumner district court; WILLIAM R. MOTT, judge. Affirmed. Opinion filed January 29, 2010.

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

Evan C. Watson, county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: A jury convicted Randy Marler of rape, aggravated indecent liberties with a child under age 14, and endangering a child; the district court imposed two hard 25 life sentences to be served consecutively. Marler appeals his convictions and sentences, claiming: (1) The district court erroneously admitted evidence of Marler's prior drug use under K.S.A. 60-455; (2) the district court gave an erroneous limiting instruction on the drug use evidence; (3) the district court erred in denying Marler's departure motion; and (4) the sentences imposed were disproportionately severe in violation of the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. We affirm both the convictions and the sentences.

FACTUAL AND PROCEDURAL OVERVIEW The charges against Marler alleged that he committed sexual acts upon his 13-year-old daughter, H.M. The allegations were originally brought to light when Marler's wife, Pam, applied for a protection from abuse (PFA) order, in which she related that she had witnessed Marler having oral sex with H.M. Pam sought the PFA order a few days after Marler was arrested and incarcerated as a result of a fight with Pam. 2

After the PFA application, Pam and H.M. were interviewed about the sexual abuse incident. H.M. reported that, on a Sunday evening, her father had given her 1

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Kansas Law