State v. Jurgens

NOT DESIGNATED FOR PUBLICATION

No. 113,608

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DWIGHT JURGENS,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed September 9, 2016.
Affirmed.

Carl F.A. Maughan and Sean M.A. Hatfield, of Maughan Law Group LC, of Wichita, for
appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., LEBEN, J., and HEBERT, S.J.

LEBEN, J.: Dwight Jurgens, an employee of TNT Bonding in Reno County, was
convicted of rape, aggravated human trafficking, and attempted aggravated human
trafficking related to three women he had bonded out of jail. Each woman told a slightly
different version of the same story at trial: Jurgens bonded her out of jail, took her to a
motel or an apartment, and either expressly or implicitly threatened to take her back to
jail if she refused his sexual advances. On appeal, Jurgens argues that the evidence at trial
wasn't sufficient to support his convictions, that his constitutional right to a speedy trial
2

was violated, and that the district court should have instructed the jury not to make its
decision based on sympathy.

Jurgens' sufficiency argument for the rape conviction is primarily that the jury
shouldn't have believed the victim's testimony because she was a drug addict with a
criminal history. But juries (or judges when sitting without a jury), not appellate courts,
make the call on whether to believe a witness' testimony, and the victim's testimony was
sufficient to support Jurgens' rape conviction—it was even corroborated by other
evidence. Jurgens also argues that the evidence was insufficient to support his
aggravated-human-trafficking convictions because it doesn't show, as the statute requires,
that he coerced "employment" from the victims. But the victims testified to the sexual
activities that Jurgens asked them to do, and Jurgens provides no convincing argument
why sexual activities are not "employment" as that word is used in the aggravated-
human-trafficking statute.

Next, Jurgens argues that the time period the State had to bring him to trial should
have started when the State first filed a misdemeanor case against him in September 2012
rather than when the State filed this case against him in March 2013. But the charges in
this case aren't the same as the charges in the previous case, so the time started running
when this case was filed. The time between charging and trial in this case was a year and
a half. Jurgens wasn't prejudiced by this delay, given the complexity of the case and the
fact that about half of the delay was due to requests and motions made by the defense.
Finally, Jurgens argues that the district court should have instructed the jury not to decide
the case based on sympathy, but Kansas courts have repeatedly disapproved of the
sympathy instruction in criminal cases except in highly unusual circumstances; we do not
think a sympathy instruction was required here. Because we have considered each of
Jurgens' claims on appeal but have found none that have merit, we affirm the district
court's judgment.

3

FACTUAL AND PROCEDURAL BACKGROUND

Jurgens was a bonding agent for TNT Bonding in Reno County. Bonding
companies help people charged with crimes get released from jail while waiting for trial.
According to testimony from two different bonding agents (other than Jurgens), a person
charged with a crime being held in jail generally agrees to pay 10% of the total bond (an
amount of money set by the court) to the bonding company, sometimes secured by
collateral or with a cosigner. In exchange, the bonding company gets that person out of
jail and becomes responsible for making sure he or she shows up for court dates; the
bonding company can be liable to pay the total bond to the court if the person doesn't
show up for court. So as a bonding agent, Jurgens helped people get out of jail, was
responsible for supervising them, and could send them back to jail if they violated the
terms of the bonding agreement.

Around 2011, Detective Diana Skomal of the Reno County Sheriff's Office began
investigating reports that Jurgens was abusing some of the women that he was bonding
out of jail and identified four possible victims: N.W., T.S., R.W., and A.D. In September
2012, the State charged Jurgens with two misdemeanor counts of attempting to promote
prostitution. On March 15, 2013, the State dismissed that case and filed this one, charging
Jurgens with rape, aggravated criminal sodomy, and one count of aggravated human
trafficking related to N.W.; one count of aggravated human trafficking related to T.S.;
two counts of attempted aggravated human trafficking related to R.W.; and two counts of
aggravated human trafficking related to A.D. All four women testified at trial, and
because Jurgens challenges the sufficiency of the evidence, we must recount their
testimony in some detail.

N.W. testified that she was a drug addict, that she had committed previous crimes
of forgery and drug possession, and that she was currently on probation. She also said
that she hadn't used drugs in a year and that she hadn't made any deals with the State in
4

exchange for her testimony. N.W. testified that Jurgens had bonded her out of jail at least
three times. She said Jurgens had first bonded her out on October 1, 2011, had taken her
to a convenience store for cigarettes and soda, and then had driven her to a park and
threatened to take her back to jail if she didn't show him her breasts. N.W. said she had
shown him her breasts and he had touched them. She testified that Jurgens had bonded
her out a second time on February 1, 2012, and that he had gotten upset when she asked
to be dropped off at a friend's house, saying that he "doesn't do this stuff for free" and that
he wasn't "getting screwed over again." N.W. said that, on this occasion, Jurgens had
taken her to the Sunflower Motel and had told her to undress; she had initially thought he
was joking, but he had then said he could take her right back to jail. N.W. testified that
after she had taken her clothes off, Jurgens removed his clothes. N.W. said that Jurgens
had tried to have sex with her but hadn't been able to maintain an erection and instead had
put his fingers in her vagina and anus without her consent.

N.W. testified that the third time Jurgens bonded her out of jail had been on May
13, 2012. This time, N.W. said, Jurgens had helped her buy some heroin before taking
her to the Trails West Motel. The State introduced a Trails West receipt signed by
Jurgens that was dated May 12, the day before he took N.W. to that hotel, and an
employee of the Trails West Motel testified that this receipt was a true and accurate
record of a room that was rented on May 13, so it appears that Jurgens rented the room
the day before he got N.W. out of jail. (The registration card itself isn't included in the
record on appeal.) N.W. said that Jurgens had shown her how to use heroin, which she
hadn't done before, and that she had gotten high. She said that the heroin had made her
"fade[] in and out" of consciousness and that when she woke up, her pants were off, her
shirt was pushed up, and Jurgens was on top of her with his fingers in her vagina. She
stated that she had been unable to fight back and that Jurgens had had sex with her.
Jurgens then left her in the motel room and told her that if she left, his bounty hunter
would find her.

5

Detective Skomal interviewed N.W. on October 17, 2012, and the video of that
interview was played for the jury. N.W.'s trial testimony was consistent with her
statements to Skomal.

Like N.W., T.S. testified that she was a drug addict and had committed past
crimes, including forgery, theft, making a false information, and conspiracy to possess
drugs. At the time of trial, she said she hadn't used drugs in 3 weeks and hadn't made any
deals with the State in exchange for her testimony. T.S. testified that she had been in jail
in September 2011 and that she had been desperate to get out; she had called Jurgens at
least 15 times asking him to post bond. T.S. said that her daughter eventually arranged for
Jurgens to bond her out, although T.S. hadn't known the details of what her daughter had
promised Jurgens in exchange. Jurgens got T.S. out of jail on September 11, 2011, and
drove her to her daughter's apartment. T.S. testified that when they got there, Jurgens had
asked her if she understood what was going to happen; she told him that she did
understand and that she wasn't doing anything against her will. At trial, T.S. stated that
Jurgens hadn't forced her to have sex but that she had felt like she had no other option.
T.S. testified that she had first performed oral sex on Jurgens, then they had had sex from
behind, and then Jurgens had finished in her mouth. She said that she had spit Jurgens'
semen onto a sweatshirt.

T.S.'s brother told the police about what had happened between T.S. and Jurgens.
Detective Skomal interviewed T.S. in December 2011, and the video of that interview
was played for the jury. The video is consistent with T.S.'s trial testimony. T.S. gave the
sweatshirt that she spat on to the police, and they performed DNA testing on it. The
forensic expert who tested the sweatshirt testified that it had T.S.'s blood on the sleeve
and Jurgens' semen on the hood.

R.W. testified that she was a drug addict, had committed crimes of dishonesty,
was currently in jail for a parole violation, and hadn't made any deals with the State in
6

exchange for her testimony. She said that Jurgens had bonded her out of jail on
September 18, 2012, and had driven her to a convenience store for cigarettes and soda.
R.W. said that Jurgens had then driven her to a motel and gotten a room, at which point
R.W. had said that she wouldn't "do this" and that he could take her back to jail. She said
that Jurgens had gotten upset because he'd already paid for the room, but he didn't take
her back to jail; instead, he told her that they could discuss it later. The State introduced a
receipt for the motel, signed by Jurgens, dated September 18, 2012.

R.W. testified that she had reported this event to the police the next day and had
agreed to record her next conversation with Jurgens. That conversation took place on
September 21, 2012, and the recording was played for the jury. On the recording, Jurgens
suggested that if R.W. had sex with him, he would reduce the amount of money that she
owed him. Jurgens told R.W. that she didn't have to have sex with him to stay out of jail
and then asked her if she still wanted to do it, and she said yes. But R.W. testified at trial
that, despite Jurgens' words, she felt like she had to agree to have sex to avoid being
taken back to jail. Jurgens and R.W. did not actually have sex after this conversation.

A.D. testified at trial that she was a drug addict and had committed previous
crimes, including forgery, identity theft, and drug possession. She stated that she hadn't
made any deals with the State in exchange for her testimony and that she hadn't used
drugs in 3 years. A.D. testified that Jurgens had bonded her out of jail on December 24,
2009. She said that Jurgens had sent her a lot of sexual text messages after bonding her
out and had come to her apartment and asked her to show him her breasts (she refused).
A.D. testified that Jurgens had indicated that he wanted to have sex with her, but she
refused. She also said that he didn't explicitly threaten to send her back to jail if she didn't
have sex with him but that the threat was implied. Jurgens revoked A.D.'s bond on
February 19, 2010, but bonded her out again on March 2, 2010. The sexual text messages
continued. A.D. testified that sometime in April, Jurgens had come to her house and had
grabbed her crotch while he was there. Jurgens revoked A.D.'s bond again on April 28,
7

2010. A.D. testified that she believed Jurgens had revoked her bond both times because
she had refused his sexual advances.

A.D. first contacted police about Jurgens in March 2012. Detective Skomal
interviewed A.D. more fully on September 28, 2012, and the jury watched video of that
interview, which is consistent with A.D.'s trial testimony.

The jury convicted Jurgens of rape and one count of aggravated human trafficking
related to N.W., one count of aggravated human trafficking related to T.S., and two
counts of attempted aggravated human trafficking related to R.W. It acquitted Jurgens of
aggravated sodomy related to N.W. and two counts of aggravated human trafficking
related to A.D. The district court denied several motions Jurgens made after the verdict,
including a motion for acquittal on each charge, a motion for a new trial, and a motion for
a downward-departure sentence (a less serious sentence than set out in our state's
sentencing guidelines).

Jurgens had a criminal-history score of G, and the district court sentenced him to a
total of 254 months in prison: 195 months for rape plus 59 months for one count of
attempted aggravated human trafficking. Those sentences would run consecutively, or
one after the other. The district court also imposed 155 months for each of the two counts
of aggravated human trafficking and 59 months for the second count of attempted
aggravated human trafficking, but these sentences were ordered to run concurrently with
the others, meaning that they would simply run at the same time as the controlling 254-
month sentence.

Jurgens has appealed to our court.

8

ANALYSIS

I. The Evidence Was Sufficient to Support Jurgens' Convictions.

Jurgens first argues that the evidence at trial wasn't sufficient to support his
convictions. Unless a defendant waives the right to a jury trial, a jury is the factfinder in a
felony criminal case, and an appeal challenging the sufficiency of evidence comes to us
only after the State has won at trial. Since the factfinder has already found in the State's
favor, we must consider the evidence in the light most favorable to the State. State v.
Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014), overruled on other grounds by State
v. Dunn, 304 Kan. ___, 375 P.3d 332 (2016). We then determine whether a reasonable
factfinder could have found that the State proved beyond a reasonable doubt that Jurgens
committed rape, aggravated human trafficking, and attempted aggravated human
trafficking. 299 Kan. at 525. We do not reweigh the evidence or determine the credibility
of witnesses. 299 Kan. at 525. The testimony of the victim alone can be sufficient to
sustain a rape conviction, provided that the testimony isn't "so incredible or improbable
as to defy belief." State v. Race, 293 Kan. 69, 79, 259 P.3d 707 (2011); see State v.
Borthwick, 255 Kan. 899, Syl. ¶ 2, 880 P.2d 1261 (1994); State v. Matlock, 233 Kan. 1,
5-6, 660 P.2d 945 (1983).

First, Jurgens challenges his rape conviction by suggesting that the testimony of
the victim, N.W., wasn't sufficient to support the conviction. Jurgens' main argument is
that N.W.'s testimony wasn't credible because she was a drug addict who had been
convicted of various crimes of dishonesty. N.W. admitted that she was an addict, testified
that she hadn't used drugs in over a year, and admitted to committing forgery and
possessing drugs. The jury was entitled to find N.W. credible despite her past crimes and
drug addiction. See Williams, 299 Kan. at 525.

9

N.W.'s testimony established that Jurgens had bonded her out of jail at least three
times and each time had asked for escalating sexual favors, leading to the rape on the
third instance. The first time, he drove her to a park, threatened to take her back to jail if
she didn't show him her breasts, and touched her breasts. The second time, according to
N.W., he took her to the Sunflower Motel, told her to undress, said he could take her right
back to jail, tried but was unable to have sex with her, and put his fingers in her vagina
and anus without her permission. The third time, after he took her to a convenience store,
he helped her buy some heroin, showed her how to use it, and then had sex with her while
she was high and unable communicate or resist. This third event took place on May 13,
2012, at the Trails West Motel, and the State introduced Jurgens' motel receipt dated May
12, along with testimony from a motel employee that the receipt showed Jurgens had
rented the room on the 13th as well. We find nothing in N.W.'s account that would make
this "the rare case in which the testimony [of a rape victim] is so incredible that no
reasonable factfinder could find guilt beyond a reasonable doubt." State v. Carter, No.
109,966, 2014 WL 3907095, at *2 (Kan. App. 2014) (unpublished opinion), rev. denied
304 Kan. ___ (April 21, 2016). In addition to the corroboration of the motel receipt, we
note that N.W. had reason not to report the offense when it occurred, since Jurgens was
the person in charge of her freedom while charges against her were pending; N.W. told
essentially the same story to law-enforcement officers when they first investigated; and
R.W. told a very similar story about her interactions with Jurgens. None of those facts
were present in the only case in which a court has found a rape victim's testimony
insufficient to support a conviction without corroborating evidence. See Matlock, 233
Kan. at 4-6. This case is unlike Matlock, and the jury was free to accept—or reject—
N.W.'s testimony. See Race, 293 Kan. at 79.

Jurgens also argues that it was logically inconsistent for the jury to acquit him of
aggravated criminal sodomy and convict him of rape, but those two charges, although
both related to N.W., are based on two different events that happened in two different
places on two different dates: the sodomy charges allegedly occurred the second time
10

Jurgens bonded N.W. out of jail, while the rape occurred the third time. Furthermore,
N.W.'s testimony about the rape was supported by the motel receipt, while there was no
such physical evidence for the alleged sodomy at the Sunflower Motel in February 2012.
We find no inconsistency in the verdicts that would cause us to question the validity of
Jurgens' conviction for raping N.W.

Second, Jurgens argues, as he has throughout this case, that the evidence isn't and
can't be sufficient to support his convictions for aggravated human trafficking (related to
N.W. and T.S.) or his convictions for attempted aggravated human trafficking (related to
R.W.), even when viewed in the light most favorable to the State, because the statutory
definition of human trafficking doesn't apply to his behavior.

K.S.A. 2015 Supp. 21-5426(a)(3)(C) defines human trafficking as "knowingly
coercing employment by obtaining . . . services that are performed or provided by another
person through . . . abusing or threatening to abuse the law or legal process." The State
charged Jurgens with the aggravated offense because his actions were "committed in
whole or in part for the purpose of the sexual gratification of the defendant," which is the
prerequisite for the aggravated offense. K.S.A. 2015 Supp. 21-5426(b)(2). In making the
legal argument that he didn't commit human trafficking, Jurgens doesn't dispute that the
evidence supports that he abused or threatened to abuse the law or legal process and that
his actions were for his own sexual gratification, nor does he challenge the evidence
supporting the overt-act element (taking some action in furtherance of the offense) of the
attempt convictions—instead, he argues that there was no evidence that he coerced or
attempted to coerce "employment" from N.W., T.S., or R.W.

The district court instructed the jury on the employment element as follows: "To
establish this charge, each of the following claims must be proved: 1. Dwight Jurgens
knowingly coerced employment by obtaining services that were performed by [T.S., N.W.,
and R.W.] through abusing or threatening to abuse the law or legal process. . . ."
11

(Emphasis added.) To employ means "to use or engage the services of." Merriam
Webster's Collegiate Dictionary 408 (11th ed. 2014).

The State presented evidence that when a bonding agent helps a person get out of
jail, the bonding agent becomes responsible for keeping track of that person and making
sure he or she shows up for court dates. So when Jurgens bonded T.S., N.W., and R.W.
out of jail, he became responsible for keeping track of their whereabouts; according to the
evidence, he could enter their homes without a warrant and take them back to jail if they
didn't comply with the terms of their bond agreement. Having sex with Jurgens wasn't
part of the bonding agreements—but Jurgens may have treated it as though it were. T.S.
testified that she believed Jurgens would have taken her back to jail if she hadn't
consented to have sex with him. N.W. testified that Jurgens specifically told her that he
would take her back to jail if she didn't show him her breasts. R.W. testified that Jurgens
had taken her from jail to a motel and that she had told him she wouldn't have sex with
him, even if it meant he would take her back to jail. Regarding their second (recorded)
conversation, R.W. said she had thought "[h]e would take me back if I didn't say I wanted
to have sex."

Again, Jurgens accepts that this evidence supports the conclusion that he either
threatened to abuse or actually abused the legal process in his interactions with these
women. But he suggests that the sexual acts he requested from T.S., N.W., and R.W.
don't constitute "employment." Jurgens doesn't cite any authority for the proposition that
sexual favors aren't employment. And what he asked these women to do fits into the
common-sense definition of "employ": Jurgens got or attempted to get T.S., N.W., and
R.W. to do a particular job for him—namely, to provide him sexual services. Nothing in
the trafficking statute requires that the employment be for a legal job or service.

Moreover, the statute itself defines the behavior that it covers. It begins with
"knowingly coercing employment" and then tells us exactly what that is: "obtaining . . .
12

services that are performed or provided by another person through . . . abusing or
threatening to abuse the law or legal process." The evidence showed that Jurgens
obtained sexual services by threatening abuse of the legal process—sending the women
back to jail, even though they hadn't violated the terms of their release, if they did not
submit to sexual acts. Under the statute, that's employment, and it's also coerced.
Considering this to be "employment" also fits within the normal usage of that term—the
dictionary definition we already cited: "to use or engage the services of." Merriam
Webster's Collegiate Dictionary 408. Had Jurgens paid a prostitute for sex, we'd say that
he employed the prostitute. Here, he coerced those he had bonded out of jail for sex.
Under this statute, that's employment by coercion, and it's covered by the statute. The
jury could reasonably conclude from the evidence that the sexual favors Jurgens received
were "employment" that Jurgens coerced or attempted to coerce N.W., T.S., and R.W. to
provide by threatening to take them back to jail (an abuse of the legal process).

In support of his argument that the aggravated-human-trafficking statute doesn't
apply to him, Jurgens also notes that the Kansas Legislature recently amended the statute
on unlawful sexual relations to specifically prohibit a bonding agent from having sex
with anyone he or she bonds out of jail. K.S.A. 2015 Supp. 21-5512(a)(12) (effective July
1, 2014). He claims that this amendment means that the legislature didn't intend for the
aggravated-human-trafficking statute to apply to his behavior, but that's not the case for
two reasons.

First, just because Jurgens could be prosecuted under the amended statute if he
were to repeat the behavior that led to this case doesn't mean that the State can't prosecute
his previous actions under a different statute that also applies. Defendants are prosecuted
based on the laws that exist at the time of the crime. See K.S.A. 2015 Supp. 21-5103(d)
("Prosecutions for prior crimes shall be governed, prosecuted and punished under the
laws existing at the time such crimes were committed."); State v. Denney, 278 Kan. 643,
646, 101 P.3d 1257 (2004) ("Criminal statutes and penalties in effect at the time of a
13

criminal offense are controlling."). The State was free to prosecute Jurgens under the
human-trafficking law for these offenses, which occurred in 2011 and 2012.

Second, the human-trafficking statute and this new statute do not cover the same
things. The portion of the human-trafficking statute at issue in Jurgens' case outlaws
coerced employment in certain situations, while the new statute he cites outlaws
consensual sexual relations between various parties, including parole officers and
parolees, corrections officers and those in custody, teachers and students, and now
sureties (bondsmen) and those to whom they have provided a bail bond. Compare K.S.A.
2015 Supp. 21-5426(a)(3) with K.S.A. 2015 Supp. 21-5512(a). Presumably because of
this very significant difference, the new offense of unlawful sexual relations by a surety
or bondsman is a level-5 felony, a less serious charge than human trafficking (level 2) or
aggravated human trafficking (level 1). See K.S.A. 2015 Supp. 21-5426(c); K.S.A. 2015
Supp. 21-5512(b)(2). The creation of this new offense does not signal that the human-
trafficking statute fails to cover Jurgens' conduct.

II. Jurgens Wasn't Denied His Constitutional Right to a Speedy Trial.

Jurgens next argues that the district court violated his right to a speedy trial
because the State filed a case against him in 2012, dismissed that case, and then filed this
one, and all of that time together adds up to more time than the State is allowed to bring
his case to trial. Jurgens' brief initially mentions both the statutory and constitutional right
to a speedy trial, but his argument focuses entirely on the constitutional right.
Accordingly, we consider only the constitutional claim and not the statutory claim that
Jurgens has not pursued on appeal. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680
(2013) (issue not briefed is deemed waived and abandoned).

Jurgens didn't raise his constitutional speedy-trial claim before the district court,
but we can consider it for the first time on appeal because it involves only a question of
14

law arising on proved or admitted facts and because it's necessary to prevent the denial of
a fundamental right. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). This
presents a question of law that we must decide independently, without any required
deference to the district court. State v. Gill, 48 Kan. App. 2d 102, 107, 283 P.3d 236
(2012), rev. denied 298 Kan. 1205 (2014).

The constitutional right to a speedy trial, guaranteed by both the Sixth Amendment
to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights,
attaches—and thus begins to protect the defendant from undue delay—at formal charging
or at arrest, whichever happens first. State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169
(2004). The right to a speedy trial is meant "to minimize the possibility of lengthy
incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment
of liberty imposed on an accused while released on bail, and to shorten the disruption of
life caused by arrest and the presence of unresolved criminal charges." United States v.
MacDonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982).

In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972),
the United States Supreme Court set out a four-factor balancing test to determine whether
a defendant's constitutional right to a speedy trial has been violated. See State v. Otero,
210 Kan. 530, 532-33, 502 P.2d 763 (1972) (adopting the Barker test in Kansas). These
factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's
assertion of the right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530. No
single factor is controlling—we must consider them together along with other
circumstances that may be relevant. 407 U.S. at 533.

The first factor, the length of the delay, is a "triggering" factor—if the length of
the delay isn't presumptively prejudicial, the court doesn't have to consider the other
factors. 407 U.S. at 530. The Kansas Supreme Court hasn't set rigid rules for what
constitutes a presumptively prejudicial delay; it depends on the facts of each case. See
15

State v. Weaver, 276 Kan. 504, 509, 78 P.3d 397 (2003). For example, the acceptable
delay for a simple, straightforward crime will be shorter than the acceptable delay for a
complex crime. 276 Kan. at 511.

Jurgens was charged in this case on March 15, 2013, and the jury trial took place
September 9-16, 2014—a delay of one and a half years. But determining the full length
of the delay requires us to decide whether, as Jurgens argues, we should include the time
during which the previous case against Jurgens was pending before the State dismissed it.
See Gill, 48 Kan. App. 2d at 109. First, Jurgens notes correctly that the State isn't
permitted to dismiss and refile cases in bad faith to intentionally avoid a speedy-trial
deadline. See MacDonald, 456 U.S. at 10 n.12. But Jurgens doesn't point to any evidence
of such bad faith in this case.

Second, under Kansas law, the constitutional speedy-trial clock starts over when
the State dismisses a previous case and refiles a new case against a defendant as long as
(1) the State dismissed the previous case because of necessity or (2) the charge in the
second case is not identical to the charge that was previously dismissed. Gill, 48 Kan.
App. 2d at 113-14. Here, the previous misdemeanor case—two counts of promoting
prostitution—was filed on September 25, 2012, and the State dismissed it on March 15,
2013, the same day that it filed charges in this case. If that time were to count, it would
add about 6 months to Jurgens' speedy-trial clock; that would bring the total up to 2
years, which is more likely to be presumptively prejudicial. See State v. Clemence, 36
Kan. App. 2d 791, 799, 145 P.3d 931 (2006), rev. denied 283 Kan. 932 (2007) (finding
that for various drug-possession charges, a 2-year delay was presumptively prejudicial).
But none of the charges in this case—rape, aggravated criminal sodomy, aggravated
human trafficking, and attempted aggravated human trafficking—are the same as the
charges in the previous case. So the constitutional speedy-trial clock started over when
this case was filed, and the 6 months that the misdemeanor case was pending against
Jurgens don't count as part of the speedy-trial time in this case.
16


Given the complexity of the case against Jurgens—involving four victims, each of
whom had her own criminal history, and nine counts of three different crimes—a delay of
one and a half years is probably not presumptively prejudicial. Even so, we will consider
the other Barker factors to determine whether Jurgens was denied his constitutional right
to a speedy trial. See Weaver, 276 Kan. at 509-10 (looking at the other Barker factors is
one way of considering all the circumstances of the case to determine whether the length
of the delay is prejudicial); State v. Fitch, 249 Kan. 562, 564, 819 P.2d 1225 (1991)
("Barker mandates an ad hoc approach in which each case is analyzed according to its
particular circumstances.").

Regarding the reason for the delay in this case, at least 9 of the 18 months that the
trial was delayed resulted from Jurgens' own motions to continue the trial, leaving only 9
months caused by the State. Additionally, Jurgens filed several pretrial motions to
dismiss, which extended the length of time before trial. See State v. Smallwood, 264 Kan.
69, 76, 955 P.2d 1209 (1998) (noting the defense's pretrial motions as part of the reason
for delay). Regarding Jurgens' assertion of the right to a speedy trial, Jurgens did make
statutory speedy-trial claims throughout this case, but this appeal is the first time he has
raised his constitutional rights. Finally, Jurgens hasn't pointed to any prejudice that he
suffered as a result of the delay. He simply claims, without detail or specificity, that his
ability to defend himself was hampered by fading memories, unavailable witnesses, and
not having access to the scenes of the crimes. But Jurgens must do more than simply say
he was prejudiced—he must show that he was, and he hasn't done so here. Jurgens wasn't
denied his constitutional right to a speedy trial.

Finally, we briefly address two minor issues related to the speedy-trial argument.
First, we note that it is Jurgens' burden to designate a record that affirmatively shows
prejudicial error. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012).
Because Jurgens argues that the delay in a previous case should be counted toward the
17

delay in this case, the record on appeal should include the complete record from the 2012
misdemeanor case. See State v. Young, No. 107,056, 2013 WL 4778148, at *6 (Kan.
App. 2013) (unpublished opinion). The transcript of Jurgens' sentencing hearing shows
that Jurgens' trial counsel asked that the misdemeanor case file be added to the record for
appeal purposes, and the district court granted that oral motion. But the misdemeanor
case file isn't in the record on appeal, and it's not clear why. However, as we have
explained, we still considered the impact of the misdemeanor case before we concluded
that Jurgens' constitutional right to a speedy trial was not violated.

Second, the State argues that Jurgens' speedy-trial claim is moot. For some reason,
Jurgens' trial counsel seems to have assumed that the two counts of attempting to
promote prostitution in the previous case related only to A.D., so Jurgens' statutory
speedy-trial motion to dismiss related specifically to those two charges. And the State,
taking the factual basis of Jurgens' motion to dismiss at face value, argues on appeal that
since the jury acquitted Jurgens of the charges against A.D., his speedy-trial claim here is
moot. A thorough review of the record suggests, however, that the charges in the 2012
misdemeanor case most likely (but not definitely, since we don't have the misdemeanor
case file in the record on appeal) related to R.W., not to A.D., so both Jurgens' original
motion to dismiss and the State's argument on appeal appear to be based on incorrect
facts. Furthermore, Jurgens has raised a different issue on appeal than he did at the
district court: his motion to dismiss was based on his statutory speedy-trial right, but on
appeal, he raises his constitutional speedy-trial right (which he is allowed to do for the
first time on appeal, even though we ultimately ruled against him on the merits of that
claim).

18

III. The District Court Did Not Err When It Did Not Instruct the Jury to Consider the
Case Without Sympathy or Favoritism.

Jurgens argues that PIK Crim. 3d 51.07 should have been included in the jury
instructions: "You must consider this case without favoritism or sympathy for or against
either party. Neither sympathy nor prejudice should influence you." Jurgens
acknowledges that he did not request this instruction at trial nor object that it was not
given. As a result, we review the exclusion of this instruction for clear error. K.S.A. 2015
Supp. 22-3414(3); State v. Brown, 300 Kan. 542, 554-55, 331 P.3d 781 (2014). When
reviewing for clear error, we first determine whether there was any error at all, asking
whether the instruction was legally and factually appropriate. 300 Kan. at 554-55. If there
was error, it is only reversible (or a "clear error") if this court is firmly convinced that the
jury would have reached a different result if the error hadn't occurred. 300 Kan. at 555.

The sympathy instruction was deleted from the Kansas pattern instructions in
2000. PIK Crim. 3d 51.07 (2000 Supp.). And even before it was deleted, the Notes on
Use for this instruction cautioned that it shouldn't be given except in "very unusual
circumstances" because it tells the jury what not to do rather than what to do. PIK Crim.
3d 51.07 (1995 Supp.); see State v. Maggard, 26 Kan. App. 2d 888, 892, 995 P.2d 916
(error to give sympathy instruction in combination with refusal to give diminished-
capacity instruction for mentally retarded defendant), rev. denied 269 Kan. 938 (2000).
The jury was told, as is standard, that its "verdict must be founded entirely upon the
evidence admitted and the law as given in [the court's] instructions." See PIK Crim. 4th
68.010. There was surely no suggestion in the court's instructions that sympathy should
enter into the jury's deliberations.

So were the circumstances of this case so unusual that it was error for the district
court not to give the sympathy instruction? No. The instruction was removed from the
pattern instructions 16 years ago, and Kansas courts have long stated that the better
19

practice is to not give this instruction. State v. Sully, 219 Kan. 222, 226, 547 P.2d 344
(1976) (noting that it's a better practice to not give the sympathy instruction, even in a
case with potentially prejudicial photographs). Jurgens attempts to analogize his case to
State v. Rhone, 219 Kan. 542, 545, 548 P.2d 752 (1976), where the court found
sufficiently unusual circumstances to justify the sympathy instruction: the jury went to a
witness' home to hear her testimony because she was extremely sick with cancer. But
nothing so unusual occurred in this case. See also State v. Baker, 281 Kan. 997, 1004-05,
135 P.3d 1098 (2006) (upholding refusal to give sympathy instruction despite paraplegic,
possibly depressed victim); State v. Holmes, 278 Kan. 603, 634-36, 102 P.3d 406 (2004)
(upholding refusal to give sympathy instruction despite victim's family members crying
and being escorted from the courtroom); State v. Reser, 244 Kan. 306, 315-17, 767 P.2d
1277 (1989) (upholding refusal to give sympathy instruction despite 14-year-old victim
and 39-year-old stepfather defendant in rape and sodomy case). The district court didn't
err by not giving the sympathy instruction.

Finally, we should note that Jurgens also argues that the three trial errors he has
alleged collectively rise to the level of cumulative error. Trial errors that are individually
harmless may require reversing a defendant's conviction when considered together: "The
test is whether the totality of the circumstances substantially prejudiced the defendant and
denied him or her a fair trial. No prejudicial error may be found under the cumulative
error doctrine if the evidence against the defendant is overwhelming." State v. Hart, 297
Kan. 494, 513-14, 301 P.3d 1279 (2013). The court has unlimited review of this issue and
accumulates all the errors, analyzing whether the collective effect is so great that the
errors cannot be harmless. State v. Betancourt, 299 Kan. 131, 146-47, 322 P.3d 353
(2014). Even so, a single error cannot constitute cumulative error, and the court will find
no cumulative error when the record fails to support the errors the defendant raises on
appeal. State v. Williams, 299 Kan. 509, 566, 324 P.3d 1078 (2014), overruled on other
grounds by State v. Dunn, 304 Kan. ___, 375 P.3d 332 (2016); Betancourt, 299 Kan. at
20

147. Here, Jurgens alleged three errors, but we found none to have merit. Therefore, there
can be no cumulative error. Williams, 299 Kan. at 566.

We affirm the district court's judgment.