State v. Barron

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NOT DESIGNATED FOR PUBLICATION

No. 118,833

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v

ZEBULIN RICHARD BARRON,
Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed February 1,
2019. Affirmed.

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

Jon S. Simpson, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., MALONE and LEBEN, JJ.

PER CURIAM: When a defendant over the age of 18 is convicted of aggravated
indecent liberties against a child under age 14, the presumptive sentence is life in prison
with no possibility for parole for 25 years. But the defendant can seek a lesser sentence—
called a departure sentence—and the court can grant that departure sentence if
"substantial and compelling reasons" support it.

Zebulin Richard Barron appeals the district court's denial of his motion for a
departure sentence after his conviction for aggravated indecent liberties with a child. He
argues that the district court should have found substantial and compelling reasons to
depart from his acceptance of responsibility, lack of past offenses, employment record,
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community support, and other factors. But evidence before the district court showed that
Barron minimized his wrongful conduct and had abused more than one child. We
conclude that a reasonable person could agree with the district court's decision, so it did
not abuse its discretion in denying Barron's request for a departure sentence. We therefore
affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Barron pleaded no contest to one count of aggravated indecent liberties with a
child in violation of K.S.A. 2017 Supp. 21-5506(b)(3)(A), which applies when the victim
is younger than 14. In the plea, Barron admitted that he was over the age of 18 at the time
of the offense and the victim, A.C., was under the age of 14. When she testified at
Barron's 2017 sentencing hearing, A.C. was 10; the offense was alleged to have occurred
between December 1, 2012, and December 31, 2014, when A.C. was between 6 and 8.
Barron would have been between 37 and 39 during that period.

At the plea hearing, the State detailed the evidence that would have been presented
at trial—evidence both about the abuse of A.C. and about abuse of two other girls. The
allegations about A.C. arose after her father, Kyle C., contacted the Shawnee County
Sheriff's Office on March 3, 2015. He reported that Barron had sexually abused his
daughter, A.C., who is also Barron's niece.

The Shawnee County Sheriff's Office conducted an investigation in cooperation
with Texas officers because the C. family currently resides in Texas. The investigation
showed that Kyle, his wife Ginger, and A.C. spent Christmas 2012 and 2014 in Auburn,
Kansas, at a relative's house. A.C. told investigators that Barron had sexually abused her
during these gatherings.

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A.C. described that in 2012 and in 2014, Barron showed her his penis. According
to A.C., Barron showed her his penis and "plac[ed] his hand on . . . what she described as
her private part, and which was concluded to be her vagina." A.C. also stated that Barron
showed her pornography, and that afterwards, she and Barron acted out the videos by
"placing her hands on his penis and rubbing his penis. [Barron] also placed his penis in
[A.C.'s] mouth during these incidents." Other family members confirmed that during
these visits, A.C. and Barron spent "considerable amounts of time [alone] . . . watching
[Barron's] iPad and watching TV together."

The State also detailed evidence that it would have presented at trial about similar
acts of abuse Barron had committed against two other girls. The court had ruled that this
testimony would be admissible under K.S.A. 2017 Supp. 60-455(d). H.M. would have
testified that one night she awoke and found Barron "rubbing her breasts and her vagina
underneath her clothing." At the time of this alleged conduct, Barron was 20 years old
and dating H.M's older sister, and H.M. was 12. Evidence also would have been
presented that in 2012, while V.M. was three years old, Barron "pulled her pants down
and licked her bottom, on her skin." This allegedly occurred while attending a house
church in Tennessee.

After Barron acknowledged that he understood this evidence, the district court
asked him if he understood that at sentencing, the district court did not have to provide
leniency. Barron stated that he understood:

"[THE COURT:] There may be certain arguments made at the time of sentencing
that may ask for certain leniencies. I want to be sure you understand as it's stated in the
agreement, the Court is not required to grant any leniency. The Court has full authority to
impose the maximum sentence allowed by law in every case. Do you understand that?
"THE DEFENDANT: Yes, Your Honor."

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The district court then accepted Barron's no-contest plea to the crime of aggravated
indecent liberties with a child.

Before sentencing, Barron moved for a departure sentence. He asked for a
dispositional departure to probation (rather than imprisonment) and that his underlying
prison sentence be shortened to 59 months, the length that would have been called for
under our state's sentencing guidelines for a severity-level 3 felony for a person with no
past criminal offenses. Because Barron was over 18 and A.C. was under 14, his crime
was an off-grid offense subject to a presumptive sentence of life in prison with no
possibility of parole for 25 years. See K.S.A. 2017 Supp. 21-6627(a)(1)(C); K.S.A. 2017
Supp. 21-5506(b)(3).

In his motion for a departure sentence, Barron listed several circumstances he
argued justified the departure:

"1. . . .Barron has no prior felony convictions. . . .
"2. Barron has an impressive employment record. . . .
"3. Barron has been involved in exceptional charity and community activities. . . .
"4. Barron has supportive family and community. . . .
"5. Barron has accepted responsibility as illustrated by his plea in this case. . . .
"6. Barron has the responsibility to financially support his three children . . . .
"7. [Barron's] [r]ehabilitation efforts and [a]menability to rehabilitate. . . .
"8. Removal of . . . Barron from his three children's lives would be detrimental to
them. . . .
"9. Barron suffered extraordinary physical abuse as a [c]hild. . . .
"10. Barron was exposed to extreme domestic violence. . . .
"11. Barron shows extreme remorse. . . .
"12. Barron has been incarcerated since his arrest . . ., and during that time his wife has
divorced him and he has had no contact with his three children; with whom he was very
close. He is a broken man."

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At sentencing, A.C., Kyle C., and Ginger C. provided victim-impact statements,
psychologist Seth Wescott testified on Barron's behalf, and the district court considered
letters written on Barron's behalf, including several from fellow jail inmates. The State
recommended that the district court follow the statutory presumption and sentence Barron
to "a life sentence for this case." More specifically, the State requested "that the life
sentence be served . . . for a minimum of 25 years before [Barron is] eligible for parole,
[and] that the Court impose lifetime registration."

A.C. testified that since Barron abused her, she must listen to Christian music to
fall asleep at night "instead of the bad thoughts that made [her] sick." She testified that
she "felt powerless" and "hopeless" and that she and her parents "cr[ied] so many times."
A.C. stated that since her abuse she has problems "show[ing] [her] emotions sometimes
because [she] bur[ies] them so deep inside."

Ginger addressed several of the mitigating factors addressed in Barron's motion.
She claimed that Barron had lied about his employment and falsified several prior
positions and jobs. She also said that Barron had abused his position at a charity. Ginger's
main point was that Barron had not fully accepted responsibility for his actions; she noted
that he had pleaded no contest, not guilty. Kyle's testimony largely reiterated Ginger's.

Psychologist Seth Wescott, director of the Sex Offender Treatment Program at
Clinical Associates, testified on Barron's behalf. Wescott performed a psychosexual
evaluation on Barron, which "include[d] psychological testing, intelligence testing, risk
assessment, [and] a review of records and a clinical interview." As a result of this
assessment, Wescott "recommended that . . . Barron participate in and complete a sexual
offender treatment program, that [Barron] complete and process a detailed sexual history
. . ., and participate in a polygraph . . . ." Wescott also recommended that Barron
complete individual mental health counseling. Finally, Wescott determined that Barron
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should "have no contact with minors, to include familial minors, until such time as
clinical assessment does not preclude such contact."

Along with these findings, Wescott diagnosed "child sexual abuse" and "a
pedophilic disorder." Wescott also identified several issues including Barron's "denial
and minimization of sexual wrongdoing in these circumstances." Wescott said that
Barron admitted to "sexually touching" H.M., who he knew was 12 or 13 at the time.

In his report, Wescott included portions of Barron's handwritten account of the
events with A.C. Wescott read this excerpt to the court to explain his concern that Barron
was minimizing his own role in the crime against A.C.:

"He indicated [A.C.] was overly affectionate and always seemed to gravitate
toward him. 'I was affectionate in return, as I would be to family, but no more. Mostly, I
secretly got drunk and tried to seclude myself. [A.C.] found me alone watching TV.
There was a romantic scene and I was a little aroused. She ran and jumped on my lap.
She grabbed my cro[t]ch and asked 'what's that?' I made her stop. She said, 'Don't worry,
I won't tell.' I was depressed, sexually repressed, drunk and without care. I let her explore
me. I wanted to feel something, anything. It was wrong and I'm ashamed.'"

Wescott said that this portrayal was concerning because it minimized Barron's role
in the events. Wescott separately related that when he asked Barron what he had done,
Barron told Wescott that he had "'put [his] hand on her butt. She touched me. She placed
my hand on her front. She kissed me on the mouth. That was about it.'" This description
concerned Wescott because it described A.C., a young child, as the actor, not Barron.

After hearing the evidence, including testimony from Barron, and argument from
the attorneys, the district judge denied Barron's motion for a departure sentence. The
court said that it did not find mitigating circumstances that were substantial and
compelling, which is required for a departure:
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"I've considered . . . Mr. Wescott's report and everything that has been presented, and I do
not find that the factors that have been offered for mitigating factors, either any alone or
in combination, constitute substantial and compelling reasons for a departure. I'm going
to deny your departure motion.

"I do note that Mr. Wescott indicated that you're struggling with accepting
responsibility. You tend to minimize the offending and deviant behavior. You blame
extraneous circumstances and even engage in somewhat victim blaming. I know your
recovery is a process, and Mr. Wescott indicated that that is not unusual at this stage of
the proceeding, but I do note those are comments that are made. I just simply cannot find
based upon your presentation today that there are substantial and compelling reasons for
a departure."

The district court sentenced Barron to the sentence provided by statute—life
imprisonment without the possibility for parole for 25 years.

Barron has appealed his sentence to our court.

ANALYSIS

Barron pleaded no contest to one count of aggravated indecent liberties with a
child in violation of K.S.A. 2017 Supp. 21-5506(b)(3)(A). This statute defines aggravated
indecent liberties with a child as "[a]ny lewd fondling or touching of the person of either
the child or the offender, done or submitted to with the intent to arouse or to satisfy the
sexual desires of either the child or the offender, or both." K.S.A. 2017 Supp. 21-
5506(b)(3)(A). Under this statute, the crime "is an off-grid person felony, when the
offender is 18 years of age or older" at the time of the offense. K.S.A. 2017 Supp. 21-
5506(c)(3).
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The off-grid sentence is then set out in K.S.A. 2017 Supp. 21-6627(a)(1)(C). It
provides that when a defendant who is 18 years of age or older and is convicted of
aggravated indecent liberties with a child under 14 years old, that defendant "shall be
sentenced to a term of imprisonment for life with a mandatory minimum term of
imprisonment of not less than 25 years."

For a first-time conviction, though, the sentencing judge may depart from the
mandatory minimum term if the judge finds "substantial and compelling reasons" and
states those reasons on the record. K.S.A. 2017 Supp. 21-6627(d)(1). In considering such
substantial and compelling reasons, the statute provides a nonexclusive list of factors that
might be mitigating circumstances in a given case:

"(A) The defendant has no significant history of prior criminal activity;
"(B) the crime was committed while the defendant was under the influence of
extreme mental or emotional disturbances;
"(C) the victim was an accomplice in the crime committed by another person,
and the defendant's participation was relatively minor;
"(D) the defendant acted under extreme distress or under the substantial
domination of another person;
"(E) the capacity of the defendant to appreciate the criminality of the defendant's
conduct or to conform the defendant's conduct to the requirements of law was
substantially impaired; and
"(F) the age of the defendant at the time of the crime." K.S.A. 21-6627(d)(2)(A)-
(F).

A "substantial" mitigating factor is "'something that is real, not imagined;
something with substance and not ephemeral.' [Citations omitted.]" State v. Jolly, 301
Kan. 313, 323, 342 P.3d 935 (2015). A "compelling" factor "essentially forces the court,
based on the facts of the case, to 'leave the status quo or go beyond what is ordinary.'"
State v. Harden, No. 118,103, 2018 WL 3194519, at *5 (Kan. App. 2018) (unpublished
opinion) (quoting Jolly, 301 Kan. at 323). These mitigating factors are nonexclusive, and
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the court may recognize other considerations. See State v. Rife, No. 109,732, 2014 WL
1707822, at *2 (Kan. App. 2014) (unpublished opinion). When a district court considers
these factors, it should first "(1) determine whether any mitigating circumstances exist
(without considering any aggravating circumstances); and (2) if mitigating factors do
exist, determine whether they rise to the level of substantial and compelling reasons to
depart given the facts of the case." State v. Sullivan, No. 114,369, 2016 WL 4413563, at
*2 (Kan. App. 2016) (unpublished opinion) (explaining the two-factor test from Jolly,
301 Kan. 323-24).

On appeal, Barron claims the district court abused its discretion when it denied his
motion for a downward departure in sentencing. Barron argues that he "provided
substantial and compelling reasons for the granting of a departure," including the
enumerated reasons above and concluded that "the court abused its discretion in finding
that those mitigating circumstances did not constitute substantial and compelling reasons
for a departure." Barron is correct that appellate courts apply the abuse-of-discretion
standard to determine whether a district court was correct when it determined that
mitigating factors weren't substantial and compelling reasons for a departure. See State v.
Trevino, 290 Kan. 317, 322, 227 P.3d 951 (2010).

A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the trial court or (2) the decision was based on an error of
fact or law. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). Barron doesn't
claim that the district court's ruling was affected by a factual or legal error, so the
question before us is whether a reasonable person could have agreed with the district
court's conclusion that the mitigating circumstances Barron cited didn't provide a
substantial and compelling basis for a departure sentence.

Here, the district court followed the two-step Jolly procedure and did not abuse its
discretion. First, the district court determined whether mitigating factors existed in
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Barron's case. Second, the district court acknowledged those factors and determined that
they did not rise to the level of substantial and compelling reasons.

The district court need not address every mitigating factor raised by the defendant.
See State v. Tumberg, No. 116,608, 2018 WL 3795395, at *6-7 (Kan. App. 2018)
(unpublished opinion), petition for rev. filed September 10, 2018. But the court here
noted most of the factors Barron claimed as mitigating circumstances and explained why
they were not substantial and compelling:

"The Court is being asked to consider a departure motion. You have argued
several mitigating factors, presented those to the Court, which include several letters from
fellow inmates who indicate that you're a positive influence in the jail during your
contacts with them. You are somewhat of a leader as far as counseling and discussing the
religious issues, and it is obvious through communications that they made that they are
appreciative of that.

"Also some of them suggest that you serve as a model when people get upset,
you are an influence that tends to bring peace to the environment. Those are the nature of
the mitigating factors that you've indicated from those who have written letters.

"You have also argued several additional points. I've considered . . . Mr.
Wescott's report and everything that has been presented, and I do not find that the factors
that have been offered for mitigating factors, either alone or in combination, constitute
substantial and compelling reasons for a departure. I'm going to deny your departure
motion.

"I do note that Mr. Wescott indicated that you're struggling with accepting
responsibility. You tend to minimize the offending and deviant behavior. You blame
extraneous circumstances and even engage in somewhat victim blaming. I know your
recovery is a process, and Mr. Wescott indicated that that is not unusual at this stage of
the proceeding, but I do note those are comments that are made. I just simply cannot find
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based upon your presentation today that there are substantial and compelling reasons for
a departure."

While the district court didn't specifically mention each mitigating factor Barron
cited, the court said that it had considered "Wescott's report and everything that has been
presented" before making its determination. This suggests that the district court correctly
carried out the first step of the Jolly process—weighing Barron's mitigating factors to
determine whether they were substantial and compelling. See Tumberg, 2018 WL
3795395, at *8-9. The court did not find that Barron had fully accepted responsibility,
citing Barron's minimization of his "offending and deviant behavior." Barron pleaded no
contest; he did not plead guilty and directly admit his conduct. See State v. Marley, No.
114,623, 2016 WL 4063923, at *2 (Kan. App. 2016) (unpublished opinion) ("[A] plea of
no contest does not, as a matter of law, constitute an acceptance of responsibility."), rev.
denied 306 Kan. 1326 (2017).

We conclude that a reasonable person could agree with the district court. See State
v. Ashbaugh, No. 116,426, 2017 WL 5180845, at *5 (Kan. App. 2017) (unpublished
opinion) (noting that "simply taking responsibility [for a crime] does not necessarily
translate to mitigation"), rev. denied 308 Kan. 1596 (2018); Rife, 2014 WL 1707822, at
*2 (noting that although the defendant apologized, "he showed no recognition of the
harm he caused"). We therefore find no abuse of discretion.

We affirm the district court's judgment.