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No. 102,036 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. MARLIN WILLIAMS, Appellant. SYLLABUS BY THE COURT 1. K.S.A. 21-3447(a)(2) is not unconstitutionally overbroad.

2. While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected. Almost every law is potentially applicable to constitutionally protected acts. A successful overbreadth challenge can thus be made only when (1) the protected activity is a significant part of the law's target and (2) there exists no satisfactory method of severing that law's constitutional from its unconstitutional applications.

3. Almost every law is potentially applicable to constitutionally protected acts. This alone does not render a statute unconstitutional. A criminal statute should not infringe upon the First Amendment to the United States Constitution in an unconstitutional manner. The First Amendment, however, is not an impenetrable shield which protects any speech or conduct, whatsoever, with disregard to its harm and effect. Despite our First Amendment rights, we are not free to harm others under the guise of free speech. 1

4. When read in its entirety, K.S.A. 21-3447(a)(2) is clearly aimed at preventing the exploitation of minor children. The statute only applies where the offender knows that a child will be used to engage in forced labor, involuntary servitude, or sexual gratification of the offender or another. The State has a compelling interest in the well-being of its children and in the exercise of its police powers may enact legislation to protect children from adult predators.

5. K.S.A. 21-3447(a)(2) is not unconstitutionally vague.

6. A statute must be sufficiently definite to meet due process standards. The test to determine whether a criminal statute is unconstitutionally vague is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. In determining whether a statute is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement.

7. When interpreting a statute, common words are given their ordinary meanings. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it.

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8. A prosecutor can explain the legitimate factors which a jury may consider in assessing witness credibility and may argue why the factors present in the current case should lead to a compelling inference regarding credibility.

9. No prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel.

10. The crimes of aggravated trafficking and promoting prostitution do not have identical elements.

11. Under the facts of this case, the State might have successfully prosecuted the defendant for aggravated trafficking or promoting prostitution. However, the test is not whether the facts would support an alternative charge but whether the applicable elements of the charged offense are identical to the elements of an offense imposing a lesser penalty.

12. When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling.

13. A specific statute does not control over a general statute if it appears the legislature intended to make the general statute controlling. To determine whether the 3

legislature intended a general statute to control over a more specific statute, we may look to the historical background of the enactments, the circumstances attending their passage, the purposes to be accomplished, and the effects the statutes may have under the various constructions suggested.

Appeal from Sedgwick District Court; CLARK V. OWENS II, judge. Opinion filed July 8, 2011. Affirmed.

Michelle Davis, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, for appellee.

Before MALONE, P.J., PIERRON and ARNOLD-BURGER, JJ.

PIERRON, J.: Marlin Williams appeals his conviction of aggravated trafficking. He asserts the aggravated trafficking statute is unconstitutionally vague and overbroad; the prosecutor committed misconduct during closing arguments; he should have been sentenced for the crime of promoting prostitution under the identical offense doctrine, that promoting prostitution is a more specific crime than the general crime of aggravated trafficking; and his sentence was improperly increased without his criminal history proven to a jury beyond a reasonable doubt. In April 2007, L.M., whose date of birth is October 10, 1991, ran away from the Wichita Children's Home and lived with a friend's aunt for about a month. One day late in April or early May, L.M. went outside to smoke a cigarette and began talking with the driver of a car that was parked outside. A white female, identified as Nikki, was sitting in the passenger seat. The driver of the car, who introduced himself as "Pressure," was subsequently identified as Williams. Williams and L.M. engaged in small talk and

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Williams said to L.M., "[Y]ou ain't ready for this." Taken in context, L.M. understood that Williams was referring to prostitution.

A few minutes after L.M. went back inside the house, Nikki came to the door and told L.M. that Williams wanted to speak with her. Williams asked L.M. her age; L.M. lied and said she was 17. L.M. agreed to get in the car and to travel to Texas that night. Williams also discussed going to Atlanta and Louisiana. L.M. understood that those were places where "you travel and ho at." Williams told L.M. that he did not like "his girls" looking at any other men; he wanted them to look down and not speak unless he gave them permission. L.M. asked if she could go home to get her clothes and makeup, but Williams refused and stated that he would buy her "all new things."

Williams drove to a friend's house and went inside while L.M. and Nikki stayed in the car. L.M. questioned Nikki about how Williams' prostitution operation worked. Williams then returned to the car and drove to another friend's house. L.M. and Nikki accompanied Williams inside, where Williams instructed both girls to take off their clothes so he could look at them. Williams, L.M., and Nikki returned to the car and made another stop to pick up a man named Casper. Williams told L.M. that she was too pretty to be working on the streets and suggested that once he saved up enough money he would open a club where she could work. Williams also stated that L.M. and Nikki were "all he got" because "his bottom bitch was in jail." L.M. understood this was a reference to "the ho that's been with him the longest."

Upon arrival in Dallas, Texas, the group checked into a small hotel. Williams instructed Casper to go with Nikki to wash her clothes, leaving L.M. alone with Williams. Williams requested oral sex from L.M.; L.M. complied because she felt she had to. After Nikki returned to the room, Williams gave L.M. eight condoms and a "beeper phone." Williams had previously instructed L.M. on the price she was to charge for oral sex and intercourse, and he told her not to come back without at least $400. 5

Williams told L.M. that if she ran out of condoms she would have to buy them with the money she made or "make the guys pay for them." L.M. left the hotel and began performing sex acts on customers, or "tricks," in exchange for money. L.M. charged $40 to $50 for oral sex and $80 to $100 for intercourse, and she made approximately $500 that first day. L.M. continued to work the streets for 10 to 12 hours each day. Williams always told L.M. when it was time for her to go out and would call her while she was out to find out where she was and how much money she had made.

On May 4, 2007, Detective Michael McMurray of the Dallas Police Department was patrolling an area known for prostitution activity when he observed L.M. walking along the highway. McMurray saw a vehicle stop near L.M., but L.M. saw McMurray and kept walking. McMurray then made contact with L.M. at a gas station and questioned whether she was working as a prostitute and asked for her name and date of birth. L.M. initially provided McMurray with false information but eventually told him her real name and birth date. Upon learning L.M.'s true identity, McMurray discovered that she had been reported as a runaway out of Wichita and transported her to police headquarters for an interview. L.M. gave McMurray permission to examine her cell phone, which contained the name "Pressure" in its contact list.

After the interview, the police department transported L.M. to a juvenile detention facility and contacted Kansas law enforcement. L.M. stayed at the facility for 2 weeks until she was flown back to Wichita. Upon her arrival in Wichita, L.M. learned that Pressure's real name was Marlin Williams, and she spoke to law enforcement about what had occurred in Dallas.

Williams was subsequently charged with one count of aggravated trafficking, contrary to K.S.A. 21-3447(a)(2), amended in 2010 to aggravated human trafficking. See K.S.A. 2010 Supp. 21-3447.

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At trial, Williams admitted that he had been in Dallas during the time alleged by L.M., but claimed that he went there to shop with his current wife, their son, and his wife's niece. Williams denied meeting L.M. in Wichita and traveling to Dallas with her. He testified he had first met L.M. in Dallas and gave her his phone number then.

A jury found Williams guilty as charged. The district court imposed a downward durational departure sentence of 246 months' imprisonment. Williams timely appeals.

Is the Aggravated Trafficking Statute Unconstitutionally Overbroad?

Williams first contends that the subsection of the aggravated trafficking statute he was convicted under, K.S.A. 21-3447(a)(2), is unconstitutionally overbroad. Specifically, he claims the statute prohibits constitutionally protected activity such as speech and travel.

At the conclusion of the State's case, Williams raised this issue before the district court, asserting that the aggravated trafficking statute was overbroad and infringed upon protected activity. The court rejected Williams' argument, holding that he could not show that the statute was overbroad as applied to him.

Whether a statute is unconstitutionally vague or overbroad is a question of law subject to unlimited review. State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006). A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and the duty to do so. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009). The overbreadth doctrine should be "employed sparingly and only as a last resort." State v. Whitesell, 270 Kan. 259, 271, 13 P.3d 887 (2000).

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"While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected. Almost every law is potentially applicable to constitutionally protected acts. A successful overbreadth challenge can thus be made only when (1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing that law's constitutional from its unconstitutional applications." 270 Kan. 259, Syl.

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