State v. Campbell

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NOT DESIGNATED FOR PUBLICATION

No. 114,396

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT L. CAMPBELL, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed November 10,
2016. Affirmed.

Roger L. Falk, of Law Office of Roger L. Falk, P.A., of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GREEN, P.J., MCANANY and STANDRIDGE, JJ.

Per Curiam: Robert L. Campbell, Jr., appeals from his bench trial conviction of
stalking in violation of K.S.A. 2011 Supp. 21-5427(a)(1), (b)(1)(A). Campbell also
appeals from the trial court's order that he register under the Kansas Offender
Registration Act (KORA), K.S.A. 22-4901 et seq. as amended in 2011. Campbell argues
that the trial court lacked sufficient evidence to convict him under K.S.A. 2011 Supp. 21-
5427(a)(1), (b)(1)(A). Campbell further argues that the trial court erred when it
interpreted K.S.A. 2011 Supp. 22-4902(a)(5) and (c)(15) of KORA as providing the trial
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judge with discretion to require registration. Finding no merit in Campbell's arguments,
we affirm.

T.D. owned and worked at a hair salon in Wichita, Kansas. On November 14,
2011, T.D. noticed a man, whom she later identified as Campbell, hanging around her
salon entrance. She locked the salon door until her next client showed up. T.D. saw
Campbell knock on the salon window. He was holding up a cell phone and pointing at the
salon's phone. Although T.D. could not hear Campbell's voice through the window, she
could read his lips. T.D. believed Campbell asked, "Can I use your phone?" T.D.
motioned to Campbell through the window that he could not use her phone.

Approximately 30 minutes later, T.D. received a phone call at the salon. The
caller's number was listed as "Private Caller." T.D. answered the call and heard a man's
voice on the other end. T.D. did not recognize the voice. T.D. heard the caller say "vulgar
stuff," so she hung up the phone. T.D. could not recall the specific language used during
that phone call. November 14, 2011, was the first time that T.D. had received private
calls of a sexual nature at her salon. The events of that day made T.D. uncomfortable and
scared. When T.D. left the salon that evening, she walked out with a customer. Walking
out with a customer was not a normal practice for T.D. She did not report this incident to
the police.

On December 1, 2011, T.D. received a second phone call listed as "Private
Caller"at her salon. T.D. noticed that the caller's voice was similar to the voice she had
heard previously, which referenced vulgar language. The caller asked T.D. how late she
worked. When T.D. asked the caller if he would like to make an appointment, the caller
responded, "No, I just want to know how late you work so I can sit outside your window
and jack off." T.D. hung up the phone. T.D. stated that the phone call made her
uncomfortable and scared, so she locked the salon door. Immediately after T.D. hung up,
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the phone rang again. T.D. answered the phone. The caller said, "Don't you want to listen
to me tell you how I watch your sweet ass through the window?"

On December 6, 2011, T.D. received another "Private Caller" phone call. T.D.
recognized the caller's voice as the same voice from the previous calls. The caller asked
T.D., "Are you wearing something that shows camel toe?" "Camel toe" is a slang term
used to describe the shape of a woman's vagina through clothing. During that call, T.D.
asked the caller why he was calling her. The caller replied, "'Cause I enjoy it." After this
call, T.D. reported the calls to the police. She was scared that someone was watching her.

On January 30, 2012, T.D. received two more phone calls. Both calls listed the
caller as "Private Caller." T.D. made an attempt to record the first call, but the caller
never spoke. T.D. received another call from the private caller minutes after the first call.
The caller did not say anything on the second call either. After she hung up the phone,
T.D. looked out the salon window and saw a man, whom she would later identify as
Campbell, sitting on a landscape rock.

Surveillance video from the night of January 30, 2012, showed a man, whom T.D.
later identified at trial as Campbell, walking in front of her salon around the time the
phone calls were made. The video showed the man walking toward the salon, looking
into the salon windows, and holding a phone to his ear.

T.D. made a police report the day after the January 30, 2012, phone calls were
made. T.D. then met with a detective from the sex crimes bureau of the police
department. The detective made a photo array based on information he received from a
beat officer who worked the area surrounding the salon. T.D. was shown the photo array.
She circled and initialed the photo of Campbell and signed the document, indicating
Campbell was the man she had seen outside her salon. The detective identified Campbell
at trial as the man whose picture T.D. had circled.
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On February 6, 2012, T.D. received another "Private Caller" phone call. Once
again, T.D. recognized the voice of the caller as the same voice from the previous calls.
The caller said, "Please, please, let me come all over your face." Upon hearing the caller
use the word "come," T.D., who was aware that the term "come" is often used as slang
for ejaculate, called the police. The police escorted T.D. to her car that night. T.D.
assumed Campbell was watching her because the phone calls would come when she was
alone.

On February 12, 2012, Campbell was arrested in an unrelated case. During that
arrest, police uncovered two cell phones in Campbell's possession. The actual owner of
the phones was not determined. Only one of the phones contained anything of evidentiary
value. The police obtained a warrant to search the phone. The phone contained graphic
photographs, including seven pictures of women with "camel toe" and other pictures of
women with semen on their faces. None of the dates associated with the pictures in the
phone corresponded with the reported dates of the phone calls. The phone also contained
contacts listed under other explicit names.

The search further showed outgoing calls from the phone made to a contact listed
as "Fabulous" on February 11, 2012, and February 12, 2012. The phone number
associated with the "Fabulous" contact was *67-262-XXXX, which is the phone number
for the salon where T.D. worked. The prefix *67 is a way to block one's phone number
from being displayed on caller identification.

Campbell was convicted at a bench trial of stalking in violation of K.S.A. 2011
Supp. 21-5427(a)(1), (b)(1)(A) and sentenced to 12 months' imprisonment. The State
requested that Campbell be required to register under KORA. More specifically, the State
requested registration under K.S.A. 2011 Supp. 22-4902(a)(5) and (c)(15). The trial court
imposed the 12-month sentence and reserved the issue of registration for later
consideration.
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At a later motion hearing, Campbell moved for judgment of acquittal or in the
alternative a new trial. Both motions were denied. The judge proceeded to hear and rule
on the State's request for registration. The judge ruled in the State's favor and required
Campbell to register for a period of 15 years. In doing so, the judge interpreted K.S.A.
2011 Supp. 22-4902(a)(5) as granting discretion to trial judges in determining who must
register. The trial judge also stated that he was making an alternative finding that
Campbell's crime was sexually motivated under K.S.A. 2011 Supp. 22-4902(c)(15). In
support of this finding, the trial judge relied on the following facts:

1. Campbell had telephone contact with T.D. at least seven times over a
period of approximately 3 months.
2. Campbell made personal contact with T.D. at her salon in connection with
at least two of the phone calls.
3. Campbell's actions scared T.D. and caused her to change her course of
business.
4. The content of Campbell's phone calls was lewd and intimidating, including
Campbell asking T.D. how late she worked so that he could masturbate
outside of the salon window; Campbell asking if T.D. was wearing
something that showed "camel toe;" Campbell watching T.D.'s "sweet ass"
through the salon window; and Campbell asking T.D. if he could ejaculate
on her face.
5. T.D. identified Campbell as the person in the surveillance video outside her
salon and as the person she observed outside her salon on two different
dates that corresponded with offensive phone calls she received.
6. When T.D. asked Campbell why he was calling her, he stated, "'Cause I
enjoy it."
7. Campbell possessed a cell phone when he was arrested that contained
T.D.'s phone number in it.
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8. The cell phone had graphic images of women with "camel toe" as well as
graphic images of women with semen on their faces. These images
corresponded with the content of Campbell's phone calls to T.D..
9. Campbell's sexual incentive and motivation was demonstrated by the
content of the phone calls and the graphic images on the cell phone in his
possession.

Did the Trial Court Err in Requiring Campbell to Register Under KORA?

On appeal, Campbell argues that the trial judge misinterpreted KORA in
determining that he had the authority to order Campbell to register. Campbell specifically
argues that because he was denied probation and was not eligible for diversion, the trial
court did not have the discretion to order him to register under K.S.A. 2011 Supp. 22-
4902(a)(5). On the other hand, the State argues that even if the trial judge did not have
authority solely under K.S.A. 2011 Supp. 22-4902(a)(5), he did have authority to require
registration after finding Campbell's crime was sexually motivated under K.S.A. 2011
Supp. 22-4902(c)(15). Campbell also argues that the rule of lenity requires this court to
construe KORA in his favor and interpret the relevant provisions as not providing the
trial judge with the authority to order registration.

Interpretation of a statute is a question of law over which this court has unlimited
review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The rule of lenity
states that generally criminal statutes are strictly construed in favor of the accused. State
v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). The rule of lenity arises only if there
is any reasonable doubt of the statute's meaning. State v. Williams, 303 Kan. 750, 760,
368 P.3d 1065 (2016). When a statute is plain and unambiguous, an appellate court
should not speculate about the legislative intent behind the clear language. Barlow, 303
Kan. at 813. Further, courts must construe statutes to avoid absurd results and presume
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the legislature does not intend to enact meaningless legislation. State v. Frierson, 298
Kan. 1005, 1013, 319 P.3d 515 (2014).

Here, Campbell claims that K.S.A. 2011 Supp. 22-4902(a)(5) and (c)(15) of
KORA are subject to the rule of lenity, but he fails to point out any ambiguities in those
provisions. Instead, as discussed later, Campbell cites authorities that tend to clear up any
confusion as to the meanings of the provisions in question.

Moreover, a point that is raised incidentally in a brief and not argued therein is
deemed abandoned. State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015). Stating
that the rule of lenity applies is not enough to require its application. The provisions in
question are not ambiguous. This means that the rule of lenity does not require discussion
at great length.

Campbell relies on State v. Harkins, No. 108,614, 2015 WL 5458665 (Kan. App.
2015) (unpublished opinion), in asserting that K.S.A. 2011 Supp. 22-4902(a)(5) does not
grant a trial judge the authority to require registration absent a probation order or
diversion agreement. Harkins involved a woman who pled guilty to aggravated battery
and child abuse, offenses that are not specifically included in KORA as registerable
offenses. The plea agreement included a provision that allowed the State to recommend
that the court order registration under KORA. The plea agreement was rejected by the
trial court, but the trial court still ordered Harkins to register under KORA's "catch-all"
provision in K.S.A. 2011 Supp. 22-4902(a)(5). K.S.A. 2011 Supp. 22-4902(a)(5) defines
an offender as "any person required by court order to register for an offense not otherwise
required as provided in [KORA]."

The court in Harkins noted that the only other provision in KORA that references
22-4902(a)(5) is K.S.A. 2012 Supp. 22-4906(i), which states:
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"Notwithstanding any other provision of law, if a diversionary agreement or
probation order, either adult or juvenile, or a juvenile offender sentencing order, requires
registration under the Kansas offender registration act for an offense that would not
otherwise require registration as provided in subsection (a)(5) of K.S.A. 22-4902, and
amendments thereto, then all provisions of the Kansas offender registration act shall
apply, except that the duration of registration shall be controlled by such diversionary
agreement, probation order or juvenile offender sentencing order."

The court in Harkins found that "[t]his provision applies only when the court has
ordered registration as part of a diversion agreement, probation order, or juvenile
offender sentencing. Harkins was denied probation, so this provision did not apply. Thus,
the district court was without authority to order registration . . . ." Harkins, 2015 WL
5458665, at *2.

Campbell argues that this holding means that the trial judge in his case did not
have the authority to order registration where Campbell was not subject to probation or
diversion. Campbell further argues that his position is supported by the holding of our
Supreme Court in State v. Coman, 294 Kan. 84, 283 P.3d 701 (2012). In Coman, the
defendant was convicted of misdemeanor sodomy. The defendant was required to register
under KORA after a finding that his crime was sexually motivated. Coman, 294 Kan. at
85. The crime the defendant was convicted of was expressly listed in KORA under a
separate provision. Our Supreme Court found it illogical that the legislature would
specifically list the defendant's crime in a separate provision of KORA if the crime could
be brought in as sexually motivated. Thus, our Supreme Court held that the defendant's
particular crime, having been expressly listed in another provision, was excluded from
being a registerable offense under the sexually motivated provision of KORA. Coman,
294 Kan. at 97. Allowing registration under the sexually motivated provision would have
worked against the intent of the legislature. Coman, 294 Kan. at 95.

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Campbell correctly asserts that his order to register was not made in connection
with a diversion agreement or probation order. Campbell is also correct that the crime of
stalking is not found in any provision of KORA. Campbell is not correct, however, in
asserting that these facts preempted the trial court from ordering him to register at all.

Campbell is similar to Harkins in that he was convicted of a crime that is not
specifically included in KORA. This fact also distinguishes Campbell from Coman.
Coman was ultimately not required to register under the sexually motivated provision of
KORA because his crime was expressly included in another provision. What sets
Campbell's case apart from Harkins is that Campbell is being required to register under
KORA because his crime, though not listed in the Act, was found to have been sexually
motivated under K.S.A. 2011 Supp. 22-4902(c)(15).

K.S.A. 2011 Supp. 22-4902(a)(1) states that "[o]ffender means: (1) A sex
offender, as defined in subsection (b)." Subsection (b) of K.S.A. 2011 Supp. 22-4902
defines a "sex offender" as "any person who: (1) On or after April 14, 1994, is convicted
of any sexually violent crime set forth in subsection (c)." Subsection (c)(15) of K.S.A.
2011 Supp. 22-4902 includes as a sexually violent crime:

"any act which at the time of sentencing for the offense has been determined beyond a
reasonable doubt to have been sexually motivated, unless the court, on the record, finds
that the act involved non-forcible sexual conduct, the victim was at least 14 years of age
and the offender was not more than four years older than the victim. As used in this
paragraph, 'sexually motivated' means that one of the purposes for which the defendant
committed the crime was for the purpose of the defendant's sexual gratification."

The sexually motivated provision in K.S.A. 2011 Supp. 22-4902(c)(15) (now
K.S.A. 2015 Supp. 22-4902[c][17]) remains a useful and viable option for unlisted
nonsex crimes. Coman, 294 Kan. at 94.

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At the motion hearing where the registration issue was argued, the trial judge
stated:

"I am finding that the facts in this case that support Mr. Campbell's conviction justify
registration under the Act . . .

"I will also address the issue of . . . this being sexually motivated under K.S.A.
22-4902(c)(15) . . . . My ruling in regard to whether this was sexually motivated or not,
which would be . . . an alternative finding under a different subsection has only to do with
the Kansas Offender Registration Act and whether Mr. Campbell is required to register
based upon that finding."

In the order granting the State's motion to require Campbell to register, the trial
judge stated:

"The sexually graphic images on the Defendant's cell phone . . . directly corresponded to
descriptive statements he made to [T.D.] on that phone, clearly demonstrating his sexual
incentive and motivation . . .

"The facts of this case unquestionably establish the Defendant's prurient drive
and predatory campaign of harassment and intimidation against [T.D.]. The Defendant's
actions demonstrate his danger to the safety of our citizens. Therefore, the Court finds the
Defendant must register pursuant to K.S.A. 22-4902(a)(5)."

While the trial judge could have been more clear that he was contemplating K.S.A.
2011 Supp. 22-4902(c)(15), the language in his order indicates he used that section to
support his finding of authority. The trial judge said the facts "demonstrat[ed]
[Campbell's] sexual incentive and motivation . . . ." In mirroring the language of K.S.A.
2011 Supp. 22-4902(c)(15), the trial judge indicated that he had made a finding, or at the
very least contemplated, that one of Campbell's motivations in committing the crime was
his own sexual gratification.
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At the motion hearing on the issue of registration, the trial judge stated that his
decision on whether Campbell's crime was sexually motivated under K.S.A. 2011 Supp.
22-4902(c)(15) would be an alternative finding. This language requires further
consideration from this court. When a trial court provides an alternative basis to support
its ruling on an issue and an appellant fails to challenge the validity of each alternative
basis on appeal, an appellate court may decline to address the appellant's challenge to the
trial court's ruling. State v. Novotny, 297 Kan. 1174, 1180, 307 P.3d 1278 (2013).

Here, the trial judge made a finding that he had authority to require Campbell to
register under the catch-all provision in K.S.A. 2011 Supp. 22-4902(a)(5). The trial judge
also made an alternative finding that the crime was sexually motivated under K.S.A. 2011
Supp. 22-4902(c)(15). Again, at the motion hearing regarding the issue of registration the
trial judge stated, "My ruling in regard to whether this was sexually motivated or not,
which would be . . . an alternative finding under a different subsection has only to do
with the Kansas Offender Registration Act and whether Mr. Campbell is required to
register based upon that finding." (Emphasis added.)

Furthermore, Campbell's failure to address the fact that the trial judge found his
crime to be sexually motivated should be fatal to his appeal. An issue not briefed by the
appellant is deemed waived or abandoned. Williams, 303 Kan. at 758. As was noted
above, a point that is incidentally raised in a brief and not argued therein is also deemed
abandoned. Sprague, 303 Kan. at 425. Campbell did not present an argument regarding
the finding that his crime was sexually motivated. In failing to brief the issue of whether
his crime was sexually motivated, Campbell has also failed to address an alternative
finding of the trial court.

Finally, it is well accepted that so long as the trial court reaches the correct result,
its decision will be upheld even if it relies upon incorrect grounds or assigns erroneous
reasons for its decision. State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015).
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Here, even though the trial judge's order stated that he was relying on K.S.A. 2011
Supp. 22-4902(a)(5), he arrived at the correct result in requiring Campbell to register.
Campbell's crime of stalking was found to be sexually motivated. A sexually motivated
crime not otherwise listed in KORA may result in registration under K.S.A. 2011 Supp.
22-4902(c)(15). Again, according to our Supreme Court, K.S.A. 2011 Supp. 22-
4902(c)(15) remains a useful and viable option for unlisted nonsex crimes. Coman, 294
Kan. at 94. Campbell committed an unlisted nonsex crime that was found to have been
sexually motivated. Therefore, the trial judge's result was correct, even if his means for
arriving at the result were imperfect.

Thus, Campbell's arguments are misplaced. The relevant provisions are not
ambiguous, so the rule of lenity does not need to be applied. Campbell was required to
register because his crime was sexually motivated. It is true that the trial judge should
have more clearly communicated that point. Still, the lack of clarity does not take away
from the fact that the trial judge had the authority to require Campbell to register under
K.S.A. 2011 Supp. 22-4902(c)(15). As a result, we determine that the trial judge properly
required Campbell to register under KORA.

Was There Sufficient Evidence to Convict Campbell of Violating K.S.A. 2011 Supp. 21-
5427?

Campbell also argues on appeal that the evidence presented at trial was
insufficient to sustain his conviction because it did not show that Campbell made the calls
or possessed a phone on the dates the offensive calls were made. Nevertheless,
Campbell's argument ignores key facts that support the trial court's determination of guilt.

The appropriate standard of review when determining whether there was sufficient
evidence to support a conviction in a criminal case is whether, after reviewing all
evidence in a light most favorable to the prosecution, an appellate court is convinced that
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a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015). In determining whether there is
sufficient evidence to support a conviction, an appellate court generally will not reweigh
the evidence or the credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d
1074 (2016). A defendant's conviction will only be reversed in rare cases where the
testimony is so incredible that no reasonable factfinder could have found the defendant
guilty beyond a reasonable doubt. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

A verdict may be supported by circumstantial evidence so long as the evidence
provides a basis from which the factfinder may reasonably infer the existence of the fact
in issue. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). Even so, the evidence
does not have to exclude every other reasonable conclusion or inference. Logsdon, 304
Kan. at 25. A conviction of even the gravest offense can be based entirely on
circumstantial evidence. Logsdon, 304 Kan. at 25.

Here, Campbell was found guilty of stalking in violation of K.S.A. 2011 Supp. 21-
5427(a)(1)(b), (1)(A). In support of this finding, the trial judge stated:

"I think this is best described as a circumstantial case, but . . . I'm not gonna compare it to
other circumstantial cases . . . . This is a very strong circumstantial case . . . I have
confirmed the elements in PIK, the elements of the statute, the elements as charged in the
Complaint/Information, and the State has clearly met its burden of proof beyond a
reasonable doubt that each and every one of these elements has been met. The weight of
the evidence I believe is substantial, albeit circumstantial, in regard to the five or so
incidents and the seven or so calls that went along with . . . the video that shows Mr.
Campbell. [T.D.] has clearly identified him through the video, in person, [and] by the
photo array . . . . The phone was in possession, and quite frankly, between possession and
ownership in a case like this, possession trumps ownership, but whether it does or it
doesn't, it clearly suffices in terms of adding to the weight of the evidence. There are
sexual images on [the phone] which . . . bolster the State's case in terms of the things that
were said on the phone to [T.D.] and then the images that were on the phone in
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defendant's possession match up very well, and then . . . the contacts . . . —the phone
calls to [T.D.]'s place of business.

". . . Clearly [T.D.] testified that this frightened her, it scared her. She clearly
changed her course of conduct or her mode of operation . . . . That's just a brief recitation
of just some of the evidence that supports this."

Campbell asserts that the most the evidence proves is that he was outside T.D.'s
place of business on two occasions. Campbell points out that the phone found in his
possession during an unrelated arrest did not contain dates that corresponded to the dates
the calls were made to T.D. Further, Campbell notes that the two calls on the phone that
were made to the salon did not correspond to dates that T.D. received offensive phone
calls. Campbell argues that these facts, or missing facts, lead to a conclusion that the
evidence was insufficient to support a finding of guilt.

Campbell's arguments are not persuasive in light of the other evidence presented at
trial that tended to show that Campbell was the caller. T.D. identified Campbell as the
man who knocked on her salon window and pointed to his phone. Thirty minutes after
that encounter with Campbell, T.D. received the first offensive phone call. T.D. was able
to pick Campbell out of a photo array of suspected callers and identify him at trial.
Further, T.D. was able to identify Campbell as the man in a surveillance video taken
outside her salon. The surveillance video showed Campbell looking into the salon
windows and holding a cell phone to his ear. The surveillance video was taken the same
night that T.D. received two phone calls from a private caller. That night, after she
received the phone calls, T.D. saw Campbell sitting outside her salon.

Further, the cell phone in Campbell's possession had a contact under the name
"Fabulous." The contact listed the correct number for the salon where T.D. worked. The
number that was saved was preceded by *67, a designation used to prevent a caller's
identity from being revealed to the person he or she calls. All of the offensive calls that
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T.D. received were from a caller listed as "Private Caller," suggesting the caller used *67.
In addition to the contacts, the cell phone contained graphic images of the same types of
sex acts that the caller described in his phone calls to T.D.

While Campbell is not wrong in asserting that the facts he argues would bolster
the strength of the evidence identifying him as the caller, that does not mean that the
existing evidence is so lacking that it cannot support a finding of guilt. The trial judge
was correct in asserting that the circumstantial evidence in this case was substantial.

Based on the evidence that was presented, and viewing that evidence in the light
most favorable to the prosecution, a factfinder could reasonably infer that Campbell was
the person making the calls to T.D. As a result, we determine that sufficient evidence
existed to support Campbell's conviction for stalking in violation of K.S.A. 2011 Supp.
21-5427(a)(1), (b)(1)(A).

Affirmed.