State v. Massey ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,638
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JEREMY LEE MASSEY,
Appellant.
MEMORANDUM OPINION
Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed November 20, 2020.
Affirmed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Carissa Brinker, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and WALKER, S.J.
PER CURIAM: A jury convicted Jeremy Lee Massey of rape under K.S.A. 2018
Supp. 21-5503(a)(2). Massey raises several reasons he should get a new trial: (1) The
district court excluded evidence of his alleged victim's prior sexual conduct, (2) the
prosecutor misled the jury in closing arguments by misstating the law on consent, (3) the
jury received no limiting instruction on K.S.A. 60-455 evidence, and (4) the cumulative
effect of these errors denied him a fair trial. As a fifth issue, Massey also argues that the
district court violated his right to a jury trial under the Kansas Constitution when it
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determined his criminal history. Because none of these issues constitutes reversible error,
we affirm Massey's conviction and sentence.
FACTS
This is a fact-sensitive case and therefore we will set those facts out in some detail.
Massey and S.J. had been dating for five and half years and were living together in a
house in Emporia, Kansas, with their three-year-old daughter. They split up in early
August 2018, and S.J. moved out with their daughter. Over the next few weeks, S.J.
returned to the house several times to check on her cat, retrieve personal items, and allow
her daughter to see Massey.
The night before
One of those times was August 31, 2018, when the events leading to this case took
place. While moving some of her belongings out of the house during the day, S.J. noticed
that her cat had no food. So after picking her daughter up from school, S.J. returned with
some cat food around 5:30 p.m. When she arrived, Massey had just come home from
work.
They decided to drive around and talk. Massey wanted to get back together, but
S.J. was not interested unless he sought counseling to address his anger issues. When
they returned between 8 p.m. and 8:30 p.m., S.J. accepted Massey's invitation for her and
their daughter to stay for dinner. Before going in, S.J. parked her van down the street and
left the keys inside so that Massey could not take them later to prevent her from leaving.
Once inside, S.J. told Massey she wanted no physical contact that night; she was not there
to have sex.
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As Massey made dinner during the next hour, he and S.J. started drinking from a
large bottle of Fireball whiskey. S.J. did not drink often, but she drank that night in part
because Massey earlier that night said that he might start dating other people. This upset
S.J. because she hoped Massey would use the time apart to work on bettering himself.
S.J. also drank to prevent Massey, who she said started drinking before she did, from
drinking and hurting her; she said that Massey got violent with her when he drank.
In the hour before dinner, Massey and S.J. together drank about two-thirds of the
bottle of Fireball. S.J. said that she drank a third of the bottle, then Massey had a drink,
then she finished the bottle. Massey said that they started out taking shots before S.J.
switched to chugging straight from the bottle. Massey had never seen S.J. drink like this
before; he told S.J. to slow down as she kept chugging from the bottle and started slurring
her words. When they sat down for dinner around 9:30 p.m. or 10 p.m., Massey thought
S.J. had had too much to drink.
The last thing S.J. remembered from that night was sitting down to dinner. She
was fully clothed, wearing a bra and underwear, a shirt, and shorts. The next thing she
knew, she awoke several hours later lying naked on the living room floor next to Massey.
Massey filled in the gap between dinner and the next morning. After dinner, he put
their daughter to sleep on the living room couch before joining S.J. outside for another
talk. They spoke for about 10 minutes, until S.J. fell asleep. As Massey brought S.J.
inside, she threw up on the living room floor and urinated in her pants. He said that S.J.
removed her shirt and tried to use it to clean up the vomit before passing out again.
Massey removed the rest of S.J.'s clothes and put them in the washer. Sometime between
10:30 p.m. and 10:45 p.m., he laid a sleeping and naked S.J. down on the living room
floor with a blanket and a pillow. Rather than sleep in his own bed, Massey laid down on
the floor next to S.J.
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The sexual encounter
Several hours later, Massey engaged in several sexual acts with S.J. They offered
different accounts of the encounter but described the same sequence of events: Massey
woke S.J. up, kissed her, performed oral sex, penetrated her vagina with his penis,
unsuccessfully tried to put his penis in S.J.'s mouth (she clenched her jaw shut), and
penetrated her anus with his finger and penis.
In her account, S.J. described coming to early the next morning lying naked on the
living room floor next to a shirtless Massey. She felt tired and sleepy, and it took her
several moments to get her bearings and realize where she was. When Massey kissed S.J.,
she told him to stop. She also said that she went in and out of consciousness during the
sexual acts, experiencing what she described as waves of intoxication. She could not
move, speak, or open her eyes but could hear and feel what was happening to her. S.J.
could not remember how long any individual acts or the entire encounter lasted because
she had no sense of time.
Massey offered a different account. He said that he kissed S.J. and tried to wake
her up for sex twice. The second time, Massey said, S.J. kissed him back. He also knew
how much S.J. had to drink that night and that she had presumably passed out from
excessive alcohol consumption. Even though S.J. provided no verbal consent and Massey
knew how much S.J. had to drink the night before, he took S.J.'s kiss as her consent to the
sexual acts that followed. In their relationship, he explained, they "agree[d] to have sex
with each other as long as there was a kiss initiating and it was reciprocated." Massey
said that during the sexual acts, S.J. had her eyes closed, did not speak or move, and
snored at least once for a few seconds. But he thought S.J. was awake and enjoying the
encounter because she moaned and twitched her shut eyes. Massey said that the entire
encounter lasted about 10 minutes.
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The morning after and the investigation
Sometime later that morning, S.J. woke up again, this time to Massey's phone
alarm. She felt hungover and tired and smelled vomit in her hair. She guessed that this
was around 4:30 a.m. because while they were dating Massey would set his alarm for that
time to make it to work by 5:30 a.m. Massey said that he had to be at work that morning
at 5:30. S.J. showered, donned a spare set of clothes at the house, then left with her
daughter after a brief conversation with Massey.
Late the next evening, S.J. went to the hospital in Emporia because her anus had
been bleeding heavily since leaving Massey's house. She reported that she had been
raped, and she recounted her version of the encounter to Emporia Police Officer Gabriel
Withington. The Emporia hospital sent her to a hospital in Topeka that had the proper
staffing to administer a sexual assault exam. At the Topeka hospital just after midnight—
about two days after the alleged assault—S.J. consented to a forensic exam administered
by a sexual assault nurse examiner (SANE) named Joy Thomas. The exam revealed two
prominent anal tears, which tracked S.J.'s statements to Thomas that she experienced
significant bleeding in that area since the encounter. Thomas observed no vaginal
injuries.
A week later, S.J. recounted her story again to Detective Kelly Davis, who was
investigating the case. Davis and another detective interviewed Massey a few days later;
Massey agreed to the interview, and he received and waived his Miranda rights. Massey
first denied that any sexual acts occurred before admitting that he engaged in oral and
vaginal sex with S.J. He still denied having anal sex, but when informed of S.J.'s anal
bleeding, he admitted that he penetrated S.J.'s anus using only his finger. He said that he
knew how much S.J. had to drink that night—he saw her chug four inches of whiskey,
throw up on herself, urinate in her pants, and black out from drinking too much.
According to Detective Davis, Massey said that S.J. kissed him but fell asleep or passed
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out during oral sex; Massey said that he kept going "because he didn't want to cheat on
her, but he still wanted to have sex."
Massey consented to a search of his phone. When a third detective, David Holmes,
analyzed the phone, he found a video and several photographs produced the morning the
alleged assault occurred. The video was created at 5:17 a.m. and depicted Massey anally
penetrating S.J.
The charges and the trial
The State charged Massey with three crimes: (1) rape of a person who was
incapable of consenting because of intoxication, under K.S.A. 2019 Supp. 21-5503(a)(2);
(2) aggravated criminal sodomy, under K.S.A. 2019 Supp. 21-5504(b)(3)(C); and (3)
breach of privacy, under K.S.A. 2019 Supp. 21-6101(a)(6). The State dismissed the
privacy charge during the jury instruction conference at trial.
Before trial, Massey moved to admit evidence of S.J.'s prior sexual conduct under
K.S.A. 2019 Supp. 21-5502. He wanted to testify that during his relationship with S.J.,
they had "an understanding or agreement . . . wherein sexual desires or requests would be
satisfied without denial." In an affidavit attached to the motion, Massey described the
agreement as "allow[ing] either party to request sexual activities at any time, and further
that neither party could deny the request." In other words, the agreement "mean[t] that
consent was continually given." Massey wanted to testify to specific instances during
their relationship in which S.J., relying on this arrangement, "initiat[ed] sexual
intercourse while he was asleep but aroused." The district court partially granted the
motion, allowing Massey to testify generally about he and S.J.'s "prior understanding" but
preventing him from presenting any evidence about specific instances at trial without
prior approval.
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This evidentiary issue resurfaced at the two-day jury trial. S.J. testified that when
she and Massey were dating, one partner could wake the other up for sex if the other
partner was awake and willing. But she did not think this understanding was still in place
because they were broken up. She said that although a kiss was one way a partner could
consent to sexual activity in their relationship, both partners would need to be awake and
alert. Massey agreed with S.J.'s description of consent in their relationship, including that
a kiss constituted consent, but he added that "we were to agree to have sex with each
other as long as there was a kiss initiating and it was reciprocated." During the trial,
Massey renewed his request to present evidence about specific instances in which S.J.
initiated sex with him while he slept, but the district court denied the request.
In closing arguments, the prosecutor told the jury that it had to find that S.J. lacked
the capacity to consent. The prosecutor repeatedly emphasized this point in the rebuttal,
arguing that S.J.'s capacity to consent, not whether she did consent, was the key issue:
"Her body was ready for sex, but was she capable of actually consenting or was
that a physical reaction? When you go back to the jury room I encourage you to read the
instructions. Read the elements of the rape . . . and ask yourself, was there anything in
there that says whether consent actually had to be given or is it just that she was
incapable of giving that consent because of her condition, whether Mr. Massey knew
about that condition and that condition was readily apparent to him.
....
"We are not arguing whether there was consent or was not consent, that is not
what this case is based upon. This case is based upon what the evidence has shown. The
evidence has shown that [S.J.] was so drunk that she passed out. So drunk when Mr.
Massey wanted to have sex, she didn't even open her eyes. So drunk that when she's
crying out in pain because he is anally penetrating her, she cannot and does not move.
Looking at that, did Mr. Massey really think that she was capable of giving consent at
that time? Was she capable of even giving consent at that time?
....
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". . . I encourage you to use your common knowledge and experience in
analyzing whether [S.J.] was capable of giving that consent. Their agreement—both
parties said that there was an agreement, but does that agreement really matter if she's
capable or not capable of giving consent, not capable of reciprocating in a knowing way.
....
". . . The instructions on whether she was capable of giving consent, not whether
there was consent given."
After closing arguments, the jury convicted Massey of both remaining charges,
rape and aggravated sodomy. Massey moved for an arrest of judgment on the sodomy
charge based on a discrepancy between the acts charged in the indictment and those
found by the jury. See State v. Fitzgerald, 308 Kan. 659, Syl., 423 P.3d 497 (2018). The
district court granted that motion at sentencing, entering a judgment of acquittal on the
aggravated sodomy charge.
The district court imposed a 246-month prison sentence for the rape offense, the
high gridbox number for that crime based on Massey's criminal history. Massey appeals
his conviction and sentence.
ANALYSIS
Massey raises five issues on appeal: (1) the admissibility of evidence of S.J.'s
prior sexual conduct under K.S.A. 2019 Supp. 21-5502, (2) prosecutorial error from
statements in closing arguments about the elements of rape by intoxication, (3) not
providing a limiting instruction for K.S.A. 60-455 evidence, (4) cumulative error, and (5)
whether using judicial findings to calculate criminal history violates section 5 of the
Kansas Constitution Bill of Rights. This section addresses those claims in order, except
for the first two. Those issues are flipped because the legal issue at the heart of the
prosecutorial error claim affects the admissibility of the evidence of S.J.'s prior sexual
conduct. With that in mind, we begin with prosecutorial error.
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The prosecutor did not err by telling the jury that capacity to consent was the key issue at
trial.
Massey argues that the prosecutor violated his right to a fair trial under the Due
Process Clause by misstating the law in closing arguments. The prosecutor did so,
Massey contends, by telling the jury that consent was irrelevant to the case. Massey says
that these statements were prejudicial because they directed the jury to ignore his consent
defense. The State counters that the prosecutor accurately stated the law: the jury had to
decide whether S.J. could consent, not whether she did. And even if the prosecutor
misstated the law, the State says that this error was harmless and does not require a new
trial.
A two-step process governs Massey's claim: error and prejudice. The first step
involves determining whether the prosecutor's conduct fell outside the wide latitude
afforded to prosecutors in pursuing a criminal conviction. If it did, then step two asks
whether the error affected the defendant's right to a fair trial. State v. Anderson, 308 Kan.
1251, 1260, 427 P.3d 847 (2018). At this step, the State must show "'beyond a reasonable
doubt [that] the error did not affect the trial's outcome in light of the entire record, i.e.,
there is no reasonable possibility that the error contributed to the verdict.'" 308 Kan. at
1260.
At the first step, Massey claims that the prosecutor erred by misstating the law
during closing arguments. If true, that constitutes error; prosecutors must accurately state
the law to avoid diverting the jury from its duty to apply the controlling law to the facts.
Anderson, 308 Kan. at 1261. The question, then, is whether the prosecutor's comments on
Massey's consent defense misstated the law.
All the statements Massey cites make the same basic point: The prosecutor told
the jury that it had to decide "whether [S.J.] was capable of giving consent, not whether
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there was consent given." These statements were mostly made in response to Massey's
consent defense in his closing arguments. The crux of that defense was that S.J. kissed
him before the sexual encounter started. From that fact, Massey made two consent
arguments: (1) that by kissing him, S.J. gave legally valid consent to the sexual acts that
followed and (2) based on his understanding from their relationship that a kiss constituted
consent, he did not know that S.J. had not consented. Neither argument is a legally
appropriate defense to rape by intoxication under K.S.A. 2019 Supp. 21-5503(a)(2).
Massey's first consent argument ignores the statutory elements of that crime.
Unlike subsection (a)(1), which criminalizes sex with a victim who "does not consent,"
subsection (a)(2) proscribes sex with a victim who is "incapable of giving consent
because of the effect of any alcoholic liquor." K.S.A. 2019 Supp. 21-5503(a)(2). The
State must prove, in other words, that the victim was "sufficiently intoxicated," "drunk
enough to be unable to consent to sex." State v. Chaney, 269 Kan. 10, 20, 5 P.3d 492(2000). Massey never argued that S.J. kissing him somehow showed that she was not so
intoxicated she lacked the capacity to consent. Instead, this part of his consent argument
was simply that S.J. "kissed him back and by their agreement that is consent." Evidence
of conduct that could constitute S.J.'s valid consent when sober is not evidence that she
was sober enough to give valid consent. The prosecutor rightly focused the jury's
attention on S.J.'s condition and capacity to consent.
Massey's second consent argument—that he did not know S.J. had not
consented—fares no better. The specific knowledge the defendant must possess to
commit rape by intoxication is of the victim's "condition," meaning his or her
"incapab[ility] of giving consent because of the effect of any alcoholic liquor." K.S.A.
2019 Supp. 21-5503(a)(2); State v. Smith, 39 Kan. App. 2d 204, 210-11, 178 P.3d 672(2008). Massey does not explain why S.J. kissing him is evidence that he did not know or
was not reasonably aware she was too drunk to consent to sexual activity.
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Rather than dispute the plain meaning of subsection (a)(2), Massey contends it is
effectively modified by subsection (e) of K.S.A. 2019 Supp. 21-5503:
"Except as provided in subsection (a)(2), it shall not be a defense that the
offender did not know or have reason to know that the victim did not consent to the
sexual intercourse, that the victim was overcome by force or fear, or that the victim was
unconscious or physically powerless." K.S.A. 2019 Supp. 21-5503(e).
Massey latches onto the introductory clause that precedes the list of prohibited
knowledge defenses: "[e]xcept as provided in subsection (a)(2)." As he reads it, that
clause suggests that the listed defenses are defenses to rape under subsection (a)(2),
meaning it is a defense to rape by intoxication that the offender had no knowledge that
the victim did not consent.
This reading misconstrues subsection (e)'s function. The Legislature added the
language now found in subsection (e) in 2010 along with the phrase "[k]nowingly
engaging in" now found at the start of subsections (a)(1) and (a)(2). L. 2010, ch. 136,
§ 67; L. 2011, ch. 30, § 29. These changes were based upon the recommendations of the
Kansas Criminal Code Recodification Commission in its report to the 2010 Legislature.
In its official comments on the proposed revisions to the rape statute, the Commission
noted that the "[k]nowingly engaging in" language simply "clarif[ies] that general intent
is required." Kansas Criminal Code Recodification Commission: 2010 Final Report to
the Kansas Legislature, Appx. A, p. 82.
In commenting on subsection (e), which was originally subsection (d) before later
unrelated 2011 amendments, the Commission explained that it was "added to clarify that
the offender need not know . . . that the victim did not consent, was overcome by force or
fear, or was unconscious or physically powerless." Kansas Criminal Code Recodification
Commission: 2010 Final Report to the Kansas Legislature, Appx. A, pp. 82-83. Thus,
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rather than create a separate set of defenses to rape by intoxication (as Massey suggests),
all it does is clarify that, except for subsection (a)(2), rape is a general intent crime. That
is why the language listing prohibited defenses in subsection (e) is identical to the
circumstances of rape under subsection (a)(1), and it makes no reference to incapability
of consent "because of the effect of any alcoholic liquor, narcotic, drug or other
substance." The introductory clause mentioning subsection (a)(2) exists because that
offense is a combined general intent/specific intent crime: beyond the general knowledge
required (knowingly engaging in sexual intercourse), the defendant must also know that
the victim is too intoxicated to consent. Smith, 39 Kan. App. 2d at 210-11.
Read any other way, subsection (e) creates three new defenses to rape by
intoxication that have nothing to do with that offense. If, as Massey suggests, the
introductory clause in subsection (e) creates a defense to rape under subsection (a)(2) that
the defendant did not know that the victim did not consent, by the same logic it would
also recognize defenses for the other two circumstances. Surely it would for all the same
reasons, even though those circumstances have just as little to do with the elements of
rape by intoxication as the defendant's knowledge that the victim did not consent does.
That cannot be right. Subsection (e), no more than subsection (a)(2), does not make
Massey's consent claim valid. As the prosecutor repeated time and time again, the case
was only about S.J.'s capacity to consent and Massey's knowledge of her condition.
Therefore, Massey's prosecutorial error claim fails at step one of the analysis.
There is no error here that could have affected his right to a fair trial because the
prosecutor's comments he complains of were a correct statement of the law—the issue for
the jury was whether the effect of alcohol rendered S.J. incapable of consenting to sex,
not whether S.J.'s conduct could have constituted consent if she had not been intoxicated.
The prosecutor did not exceed the wide latitude afforded to the State in pursuing a
criminal conviction, so Massey's claim falls short.
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The district court properly excluded irrelevant evidence of the victim's prior sexual
conduct.
Next, Massey argues that the district court erred in excluding testimony about
S.J.'s prior sexual conduct. The testimony covered times in their relationship in which
S.J. purportedly had sex with Massey while he slept. Massey contended that evidence
was admissible under K.S.A. 2019 Supp. 21-5502, also known as the rape shield statute,
because it supported his consent defense and undermined S.J.'s credibility. Excluding this
evidence, Massey submits, affected his constitutional right to present a complete defense
and to confront the witnesses against him. The State responds that the district court
properly excluded the evidence as irrelevant and that the overwhelming evidence against
Massey makes any error harmless.
Admissibility
Evidence of a rape victim's prior sexual conduct—even with the defendant—
generally has no bearing on the victim's credibility or the issue of consent. State v.
Atkinson, 276 Kan. 920, 926-27, 80 P.3d 1143 (2003). For that reason, such evidence is
inadmissible unless it is "relevant and is not otherwise inadmissible." K.S.A. 2019 Supp.
21-5502(b). Like all evidence, evidence offered under the rape shield law is relevant if it
is material and probative. State v. Gilliland, 294 Kan. 519, Syl. ¶¶ 8-9, 276 P.3d 165(2012). Evidence is material if the fact it is offered to prove is both disputed and
consequential, having "a legitimate and effective bearing on the decision." 294 Kan. 519,
Syl. ¶ 9. And evidence is probative if it has any tendency to prove a material fact. 294
Kan. 519, Syl. ¶ 9. Appellate courts exercise unlimited review over whether evidence is
material but review probativeness for abuse of discretion. State v. Berriozabal, 291 Kan.
568, Syl. ¶ 8, 243 P.3d 352 (2010). We will not second guess a district court's decision on
the relevance of evidence about a victim's prior sexual conduct so long as "reasonable
minds could disagree as to the court's decision." 291 Kan. 568, Syl. ¶ 12.
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As we have noted, Massey moved to admit evidence that during his relationship
with S.J., she had sex with him while he was asleep. He says that this evidence was
relevant to his consent defense and S.J.'s credibility as a witness. We will address those
issues in turn.
It is true that K.S.A. 2019 Supp. 21-5502 evidence may be relevant in some cases
to whether the victim consented. See Berriozabal, 291 Kan. 568, Syl. ¶ 10. But as the last
section explained, this is not one of those cases. The only consent question for the jury in
a rape by intoxication case is whether, because of the effects of alcohol consumption, the
victim could not give valid consent. Unless S.J.'s prior sexual conduct is probative of that
issue—or of his knowledge of her condition—it is not relevant.
The prior acts Massey sought to admit were not probative of S.J.'s capacity to
consent. Massey does not explain why prior instances in which S.J. initiated sex with
Massey while he slept have any tendency to make it more or less likely that she was too
intoxicated to consent on the morning the alleged rape occurred. Consider what kinds of
information the jury would need to know to assess S.J.'s condition: the amount of alcohol
she consumed and how quickly she did so, whether she drinks often, her height and
weight, whether she ate before drinking, and how much time passed between her last
drink and the alleged rape. This is by no means an exhaustive list, but it shows how far
from relevant Massey's proffered evidence was of S.J.'s condition when the rape
occurred. Whether S.J. had sex with Massey while he slept bore no logical relationship to
her intoxication level on the morning of the alleged rape.
Nor were those acts probative of whether S.J.'s condition was "known by" or
"reasonably apparent to" Massey. K.S.A. 2019 Supp. 21-5503(a)(2). Massey, in essence,
argues that the prior sexual encounters informed his belief that S.J. consented—they
showed that in their relationship, sex could occur even if only one partner was awake and
participating. Again, the material issue under K.S.A. 2019 Supp. 21-5503(a)(2) is the
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defendant's knowledge of the victim's incapacitated condition, not of whether he or she
consented. And here too, Massey offers no reason that S.J. initiating sex with Massey
while he slept has any tendency to make it more or less likely that he knew or that it
should have been reasonably apparent to him that S.J. was too intoxicated to consent.
Massey additionally argues that the prior acts were relevant to S.J.'s credibility as
a witness. Massey contends that the prior instances in which S.J. had sex with Massey
while he slept would undermine S.J.'s testimony that consent in their relationship
required both partners to be awake and participating. And because the evidence affects
S.J.'s credibility, he says that it is admissible.
But the record reveals that Massey was not prevented from presenting that kind of
credibility evidence. Remember that the district court's pretrial order only limited
evidence of specific instances of prior sexual conduct between them; it allowed both S.J.
and Massey to testify generally about "the prior understanding between [them]." Massey
testified, for example, that he and S.J. "agree[d] to have sex with each other as long as
there was a kiss initiating and it was reciprocated." That contradicted S.J.'s testimony that
a kiss could only constitute consent in their relationship if both parties were awake and
participating. Massey does not explain why evidence of specific instances were uniquely
relevant when his testimony about how consent worked in their relationship already
contradicted S.J.'s contrary statements. A reasonable person could agree with the district
court that this was not a relevant issue.
One more point on relevance raised by Massey requires discussion. Massey
invokes eight factors this court set out in State v. Perez, 26 Kan. App. 2d 777, Syl. ¶ 3,
995 P.2d 372 (1999), for assessing the relevance of evidence offered under K.S.A. 2019
Supp. 21-5502. The Kansas Supreme Court has also adopted those factors. State v.
Lackey, 280 Kan. 190, Syl. ¶ 8, 120 P.3d 332 (2005), overruled on other grounds by State
v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). But these factors only apply to assess the
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evidence's relevance "to the issues of consent and credibility." Lackey, 280 Kan. 569, Syl.
¶ 8. Massey cites no case applying those factors in a rape by intoxication case. Again,
capacity to consent is the touchstone of that crime. And even if these factors could apply,
we agree with the State that most of them do not apply here.
In sum, the district court properly excluded evidence of S.J.'s prior sexual conduct
under K.S.A. 2019 Supp. 21-5502. Massey's proffered evidence was not material to the
actual issues at the trial. Reasonable minds could differ on whether the evidence Massey
sought to admit was relevant, so the district court did not err in excluding the evidence.
Harmless error
Even if we would consider the prior acts to be relevant and thus admissible under
K.S.A. 2019 Supp. 21-5502, excluding them does not automatically entitle Massey to a
new trial. We must disregard nonprejudicial error; that is, error that does not affect the
complaining party's substantial rights considering the entire record. Gilliland, 294 Kan.
519, Syl. ¶ 11. Error is nonprejudicial if, considering the entire record, it did not affect
the trial outcome. 294 Kan. 519, Syl. ¶ 12.
How certain we must be that evidence is nonprejudicial depends on whether the
error affected constitutional rights. If it did, then the party benefiting from the error must
show beyond a reasonable doubt that the error did not affect the trial record, meaning
"there is no reasonable possibility that the error affected the verdict." 294 Kan. 519, Syl.
¶ 13. But if the error did not affect constitutional rights, the party benefiting from the
error need only show that there is a "reasonable probability that the error will not or did
not affect the outcome of the trial in light of the entire record." 294 Kan. 519, Syl. ¶ 13.
Massey cannot show reversible error under either standard. His contrary argument
rests on a misplaced notion that the case came down to who the jury believed about the
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nature of consent in their relationship. It did not. It came down to S.J.'s intoxicated
condition and Massey's knowledge of that condition. And on that score, the evidence was
overwhelming. The State presented undisputed evidence about how much S.J. had to
drink the night before and Massey's awareness of that fact. Massey admitted that he had
sex with S.J. just several hours after watching her vomit and blackout from excessive
alcohol consumption. From this evidence we conclude there is no chance the jury would
have returned a different verdict had it known that S.J. in the past had sex with Massey
while he slept. Thus, any error in excluding evidence under the rape shield statute was
harmless.
Not giving a limiting instruction for prior crimes evidence was not clearly erroneous.
In Massey's third issue on appeal, he argues that the district court should have
provided a limiting instruction for prior crimes evidence admitted under K.S.A. 2019
Supp. 60-455. Had the jury been instructed on how to consider that evidence, Massey
insists it would not have convicted him. The State agrees that the district court should
have provided a limiting instruction for the statements Massey cites but says that the
failure to do so was harmless.
Under K.S.A. 2019 Supp. 60-455(a) and (b), evidence that a person committed
prior "crime[s] or civil wrong[s]" is inadmissible unless it is relevant to prove a material
fact. To avoid error when admitting such evidence, "the district judge must give a
limiting instruction informing the jury of the specific purpose for admission." State v.
Gunby, 282 Kan. 39, Syl. ¶ 3, 144 P.3d 647 (2006). However, not providing a limiting
instruction does not invariably constitute reversible error. 282 Kan. 39, Syl. ¶ 3. That is
especially true if, as here, a party does not request a limiting instruction below. In that
situation, we reverse for a new trial only if not providing an instruction was clearly
erroneous. See K.S.A. 2019 Supp. 22-3414(3); State v. Gentry, 310 Kan. 715, 720-21,
449 P.3d 429 (2019). To show clear error, Massey must firmly convince us that,
17
considering the entire trial record de novo, "'the jury would have reached a different
verdict had the instruction error not occurred.'" 310 Kan. at 721.
The parties march straight to applying that standard without first asking whether
all the evidence Massey cites even comes within K.S.A. 60-455's ambit. That statute
excludes evidence that a person committed "a crime or civil wrong on a specified
occasion." K.S.A. 2019 Supp. 60-455(a). Evidence would fall outside K.S.A. 60-455's
scope and thus require no limiting instruction if it "did not establish that [the defendant]
committed a particular crime or civil wrong on a particular occasion." State v. Robinson,
303 Kan. 11, 238, 363 P.3d 875 (2015), disapproved of on other grounds by State v.
Cheever, 306 Kan. 760, 402 P.3d 1126 (2017).
Massey complains of five instances covered by the rules under K.S.A. 2019 Supp.
60-455. Only two statements Massey cites arguably fit the description under Robinson—
S.J.'s two references to the police escorting her back to Massey's house. But unlike the
other statements Massey cites, those comments were not evidence that Massey committed
a particular crime or civil wrong. So they did not trigger K.S.A. 60-455 and no limiting
instruction was required for them.
That leaves three statements that Massey says required a limiting instruction, all of
which relate to Massey's violent behavior when drinking alcohol. First, S.J. testified that
Massey "liked to drink and he got violent a lot when he was drinking." Second, S.J.
explained that she drank so much that night because she knew that "when [Massey]
drinks he gets really violent and oftentimes wants to get physically violent and choke me
and throw me on the floor. . . . So I drank that much to prevent him from hurting me."
And last, sexual assault nurse Thomas repeated a similar comment S.J. made during the
forensic exam, that she drank to stop Massey from doing so because "she knew what kind
of manners, what [Massey] was like when he was drunk." Those three statements are
evidence of a crime or civil wrong, thus triggering K.S.A. 60-455's limiting instruction
18
requirement. The only issue left, then, is whether Massey has shown that not instructing
the jury on how to view that evidence was clearly erroneous.
We conclude that Massey has failed to do so. The three statements about Massey
being violent when drinking were fleeting; in all, they occupied a mere 12 double-spaced
lines in the trial transcript—less than half a page. They were dwarfed by overwhelming
evidence on the key issues of whether S.J. was too intoxicated to consent to sexual
activity and Massey's knowledge of her condition. The evidence showed that S.J.
chugged some two-thirds of a large bottle of whiskey in the hour before dinner, becoming
so intoxicated she vomited and blacked out. Knowing these facts, and that S.J. had told
him before the drinking started that she did not want to have sex with him that night,
Massey still had sex with S.J. He did so based on his understanding that during their now
ended relationship a reciprocated kiss constituted consent to sexual activity, even if one
partner was not awake. He did so despite observing that S.J.'s eyes were closed, her body
was not moving, and she snored during the act. Considering the strength of the State's
case against Massey and the passing nature of the comments complained of, the prior acts
evidence likely had little to no effect on the jury's verdict. For that reason, Massey has
not shown that the failure to instruct the jury on how to evaluate that evidence was clearly
erroneous.
There is no cumulative error.
Massey next argues that even if no single error at his trial was prejudicial, the
cumulative effect of these errors requires reversal. In reviewing a cumulative error claim,
this court reviews the entire record and exercises unlimited review. State v. Sean, 306
Kan. 963, Syl. ¶ 21, 399 P.3d 168 (2017). "One error is insufficient to support reversal
under the cumulative error doctrine." 306 Kan. 963, Syl. ¶ 21. As explained above, the
only trial error here was not instructing the jury on prior crimes evidence under K.S.A.
2019 Supp. 60-455. Thus, cumulative error does not apply here.
19
Section 5 of the Kansas Constitution Bill of Rights provides Massey no right to have a
jury establish his criminal history.
Finally, Massey raises a constitutional challenge to a sentencing statute allowing
judges to determine a defendant's prior criminal history. See K.S.A. 2019 Supp. 21-
6814(a). He says that under section 5 of the Kansas Constitution Bill of Rights only juries
may find the facts establishing any prior convictions because that was the accepted
practice in Kansas at statehood. To remedy this constitutional violation, he submits that
this court must vacate his sentence and remand for resentencing.
Massey acknowledges that he did not raise this constitutional challenge below. A
party generally cannot raise a constitutional claim for the first time on appeal. State v.
Godfrey, 301 Kan. 1041, Syl., 350 P.3d 1068 (2015). That rule has exceptions, though,
including when consideration of the new claim is needed to secure fundamental rights.
301 Kan. at 1043. The jury trial right secured by section 5 is a fundamental one. State v.
Love, 305 Kan. 716, 734, 387 P.3d 820 (2017). Since Massey's claim implicates that
right, this court may consider it even though he did not raise it below. State v. Albano, 58
Kan. App. 2d 117, 125, 464 P.3d 332 (2020), rev. granted 312 Kan. __ (September 30,
2020).
The framework for evaluating Massey's claim is well known. Section 5, which
provides that "[t]he right of trial by jury shall be inviolate," preserves the jury trial right
as it existed at common law when Kansas adopted its constitution. Love, 305 Kan. at 734.
Massey maintains that Kansas at statehood followed a common-law practice of having
juries decide criminal history, and so the sentencing guidelines violate section 5 by
allowing judges to decide that issue. Whether a sentencing statute violates section 5 is a
legal question subject to unlimited appellate review. Albano, 58 Kan. App. 2d at 125.
20
Massey is by no means the first person to suggest that judicial criminal history
findings violate section 5. A panel of our court discussed those reasons at length in
Albano. That panel rejected a carbon copy of Massey's section 5 claim for two reasons:
(1) The federal Constitution does not require jury findings for criminal history, and no
caselaw supported a broader interpretation of section 5's jury trial right and (2) section 5
could not receive a broader interpretation because juries did not decide prior convictions
at common law when Kansas adopted its Constitution. 58 Kan. App. 2d at 126.
Those reasons apply with equal force here. Massey argues the same points raised
in Albano almost word for word, citing the same cases to show that juries decided
criminal history at statehood. Albano spent nine pages distinguishing those cases and
thoroughly responding to every aspect of Massey's argument. See 58 Kan. App. 2d at
125-34. Rather than repeat those responses here, we simply note our agreement with
Albano's persuasive analysis. Although not bound to do so, we choose to follow Albano's
sound reasons for rejecting Massey's claim. See State v. Fleming, 308 Kan. 689, 706, 423
P.3d 506 (2018) ("[O]ne panel of the Court of Appeals may disagree with a previous
panel of the same court.").
Affirmed.
21