State v. Limburg

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NOT DESIGNATED FOR PUBLICATION

No. 112,727

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL J. LIMBURG,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; MICHAEL J. MALONE, judge. Opinion filed June 10, 2016.
Affirmed.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., BRUNS, J., and WALKER, S.J.

Per Curiam: A jury convicted Michael J. Limburg of 14 felony counts of sexual
exploitation of a child. Four of those convictions were severity level 5 person felonies
based on Limburg's possession of child pornography. The remaining 10 convictions were
off-grid felonies based on his promotion of child pornography. This is Limburg's direct
appeal from his convictions and controlling sentence of life without the possibility of
parole for 25 years (hard 25). Since we find no errors requiring reversal, the trial court's
decisions are affirmed.

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FACTS

During a 4-day jury trial, the State presented extensive evidence showing that
Limburg searched for, downloaded, and made available for sharing several child
pornography videos. More specifically, the evidence showed that detectives from
Lawrence, Kansas, were being trained in Denver, Colorado, on the use of a peer-to-peer
sharing network called ARES, known to be used to unlawfully share child pornography
videos and images. During that training, the detectives discovered and were able to fully
or partially download 12 files containing child pornography that they ultimately
determined Limburg, a Lawrence resident, had uploaded into the shared file. Those
videos, which the jury viewed at least part of, had titles or file names with terms
commonly known in the industry to reference child pornography. During their subsequent
investigation, police determined Limburg downloaded these videos to the shared file on
ARES on specific dates between May 1, 2012, and July 16, 2012. A later search of
Limburg's computer also uncovered evidence that 27 search terms known to be related to
child pornography were used in searching ARES and in using software to view videos
such as Windows Media Player.

The State also presented evidence that Limburg possessed images of child
pornography. For example, a search of the hard drive of Limburg's computer unveiled
approximately 50 images of child pornography, 29 of which were printed off and shown
to the jury. During their search of Limburg's apartment, the police also seized 25 floppy
disks, 15 of which contained images or movies. Eleven of those images, which were
shown to the jury, apparently contained pictures of young girls engaged in sexually
explicit conduct.

In addition to showing the jury the sexually explicit videos and images, the State
presented undisputed evidence of the approximate age of the girls who were shown. A
pediatrician testified at length that based on his observations of the physical traits of the
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girls in the videos and images, they were mostly between the ages of 8 and 10, with
others appearing between the ages of 4 and 6, 9 and 10, or generally "under 10."

Limburg voluntarily spoke to the police and denied any connection to child
pornography in a recorded statement played for the jury. During his statement, Limburg
admitted that he searched websites for adult pornography. However, he explicitly denied
ever intentionally searching for, downloading, or possessing videos or images of child
pornography. Limburg theorized that some of the child pornography the police found
could have ended up on his computer inadvertently because the file sharing programs he
used, such as ARES, for online gaming or for sharing and downloading books, music, or
adult pornography would automatically upload them without his knowledge. Limburg
also explained that he sometimes accidentally and unwittingly open websites containing
disturbing images that could constitute child pornography but were not at all what he had
intended to find through his innocuous searches for games, books, or music. Limburg
explained that as soon as he realized this was happening, he would attempt to delete the
files or repartition his computer to permanently erase any hint of the offending material
or spyware; but that did not always work. Limburg also denied any knowledge of what
might be found on one of his old computers or the floppy disks in his apartment, one of
which had the term "girls" written on it, because he found those in the trash while
dumpster diving. Such plausible deniability was Limburg's main defense at trial.

The jury was charged with determining whether Limburg was guilty of a total of
14 crimes resulting from this investigation. Each of the 12 videos downloaded from
ARES by officers served as the basis for individual charges for sexual exploitation of a
child based on the "promoting [a] performance" in violation of K.S.A. 2012 Supp. 21-
5510(a)(4). These charges were off-grid offenses subject to a life sentence without the
possibility of parole for 25 years under what is commonly referred to as Jessica's Law.
See K.S.A. 2012 Supp. 21-6627(a)(1)(F). The results of the searches of Limburg's hard
drive and the floppy disks found in his apartment led to two charges of sexual
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exploitation of a child based on the possession of a visual depiction in violation of K.S.A.
2012 Supp. 21-5510(a)(2), severity level 5 person felonies. K.S.A. 2012 Supp. 21-
5510(b)(1)(A). The trial court also instructed without objection that for each of the off-
grid offenses, the jury could instead find Limburg guilty of sexual exploitation of a child
by possession of a visual depiction constituting child pornography as a lesser included
offense.

The jury ultimately found Limburg guilty of 10 of the 12 off-grid felony counts of
sexual exploitation by promoting a performance and guilty of 4 severity level 5 offenses
of sexual exploitation by possessing a visual depiction, 2 as originally charged and 2 as
lesser included offenses of the off-grid felonies.

Prior to sentencing, Limburg filed several motions, including a motion to depart
from the hard 25 sentences for his off-grid convictions to 96 months' imprisonment,
which was double the aggravated presumptive sentence for a severity level 5 offense
under the sentencing guidelines grid. After conducting a hearing on those motions and
taking the matters under advisement, the trial court denied the motions and imposed
concurrent sentences resulting in a controlling hard 25 sentence. This is Limburg's timely
direct appeal from his convictions and sentences.

ANALYSIS

In his first issue on appeal, Limburg argues the identical offense doctrine applies
to require him to be sentenced on all of his convictions of off-grid offenses for sexual
exploitation based on the promoting of a performance to the lesser, severity level 5
penalty for sexual exploitation of a child based on possession of a visual depiction. The
State responds that either Limburg waived or invited any error he alleges here, or the
identical offense doctrine does not apply because, as a matter of law, the offenses are not
identical.
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The identical offense sentencing doctrine requires that "where two offenses have
identical elements, an offender can be sentenced to only the less severe penalty applying
to the two offenses." State v. Snellings, 294 Kan. 149, 150, 273 P.3d 739 (2012). Whether
the doctrine applies presents a question of law over which appellate review is unlimited.
294 Kan. at 152.

As our Supreme Court explained in Snellings:

"[T]here are three situations where offenses may have identical provisions: (1) where
one offense is a lesser included offense of the other; (2) where some provisions in two
statutes overlap, the overlapping provisions apply to the charged crime, and the
overlapping provisions are identical except for the penalty provisions; and (3) where all
provisions in two statutes are identical except for the penalty provisions. The identical
offense sentencing doctrine applies to the second and third situations. State v. Campbell,
279 Kan. 1, 14-15, 106 P.3d 1129 (2005) (quoting 4 LaFave, Israel & King, Criminal
Procedure §13.7[a], pp. 95-99 [2d ed.1999])." 294 Kan. at 152.

The parties disagree about which, if any, of these situations can be found in Limburg's
case.

Limburg suggests his situation falls into the second category, i.e., overlapping
provisions. In this regard, our Supreme Court has further explained:

"'When two statutes contain overlapping provisions, this court must examine the facts in
order to determine the area of overlap. Once it is determined which provisions of a statute
apply, the only question is whether the overlapping provisions contain identical elements.
That determination is made from the statute.' [State v.] Cooper, 285 Kan. [964,] 967[, 179
P.3d 439 (2008)]. But, as the Court of Appeals noted, 'the test is not whether the facts
would support an alternative charge but whether the applicable elements of the charged
offense are identical to the elements of an offense imposing a lesser penalty, i.e., what
facts the State is required to prove to obtain a conviction.' [State v.] Williams, 46 Kan.
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App. 2d [36,] 50[, 257 P.3d 849 (2011), aff'd by State v. Williams, 299 Kan. 911, 329
P.3d 400 (2014)] (citing Cooper, 285 Kan. at 967)." Williams, 299 Kan. at 926.

With respect to the 12 off-grid charges of sexual exploitation of a child by
promoting a performance, the trial court instructed the jury to use the following
definition: "'[p]romoting' means procuring, transmitting, distributing, circulating,
presenting, producing, directing, manufacturing, issuing, publishing, displaying,
exhibiting, or advertising for pecuniary profit or with the intent to arouse or gratify the
sexual desire or appeal to the prurient interest of the defendant or another person." This
instruction mirrors the statutory definition of "promoting." See K.S.A. 2012 Supp. 21-
5510(d)(2) (so defining "promoting" as used in K.S.A. 2012 Supp. 21-5510[a][4]).

Limburg complains that this is misleading to jurors because a person who
"procures" child pornography necessarily obtains possession of it, and therefore the
statutes overlap. He reasons that since possession of child pornography is punished as a
level 5 person felony, the offenses are identical for sentencing purposes and thus Limburg
could only be sentenced on the basis of a level 5 felony. The State's alternative responses
to the argument will be considered here in turn.

First, the State suggests that whether right or wrong, by Limburg's own actions or
inactions, this case represents the first situation described by the Snellings court. In other
words, the identical provisions here are lesser included offenses, so the identical offense
doctrine does not apply. In support, the State argues Limburg waived or invited any error
when he (1) did not object to the trial court's treatment of possessing a visual depiction in
violation of K.S.A. 2012 Supp. 21-5510(a)(2) as a lesser included offense of promoting a
performance in violation of K.S.A. 2012 Supp. 21-5510(a)(4), and then (2) benefitted
from the resulting instructions on lesser included offenses in formulating his closing
argument.

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At first glance, the State's argument here is at least appealing. Notably, in framing
the issue as one of waiver or invited error, the State hints that it now does not believe that
possession is, indeed, a lesser included offense of promotion. Limburg did not file a reply
brief to respond to this argument. The doctrines of waiver and invited error generally
require the showing of some affirmative or knowing decision by a defendant to relinquish
a right or to invite and lead a court into error. See State v. Soto, 301 Kan. 969, 983, 349
P.3d 1256 (2015) (noting doctrine of invited error generally precludes criminal defendant
from affirmatively inviting and leading court into error and then complaining of that error
on appeal); State v. Hargrove, 48 Kan. App. 2d 522, 533, 293 P.3d 787 (2013)
(discussing criminal defendant's ability to knowingly and voluntarily relinquish or waive
constitutional rights). In the absence of briefing from either party on the issue of whether
Limburg waived any rights or it was, indeed, error for the trial court to give lesser
included offense instructions, this does not appear to be an appropriate situation to apply
principles of waiver or the invited error doctrine. Stated another way, it is difficult to say
that Limburg waived his right to raise or invite an alleged sentencing error by not
objecting to and taking advantage of an alleged instructional error.

The State's alternative argument is much more persuasive to us. The State believes
Limburg's argument that the offenses of sexual exploitation based on promoting and
possessing of child pornography overlap should be rejected by this court. In support of
that position, the State points out that the definition of "promoting" found in K.S.A. 2012
Supp. 21-5510(d)(2), as set out in the jury instruction, contains numerous definitions for
what can constitute that element that can arguably be done without having actual
possession, including: "transmitting, distributing, circulating, presenting, producing,
directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising."
K.S.A. 2012 Supp. 21-5510(d)(2). The State also points out that the terms "procure" and
"possess" are not identical or overlapping. In support, the State points out the following
distinct definitions of those terms:

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 The term "procure" is an active verb that involves affirmatively making an effort
or cause the obtaining of something for a particular means. See, e.g., Black's Law
Dictionary 1401 (10th ed. 2014) (defining "To obtain (something), esp[ecially] by
special effort or means. 2. To achieve or bring about (a result). 3. To obtain a
sexual partner for another, esp[ecially] an unlawful partner such as a minor or a
prostitute."); State v. Eason, 163 Kan. 763, 768, 186 P.2d 269 (1947) (finding
upon review of evidence supporting defendant's conviction of procuring female
person to enter house for purpose of prostitution in violation of G.S. 1935, 21-937
that prosecution did not have to prove defendant used physical force to compel girl
to remain in house because "'[p]rocure' is a broad word. It means to bring about or
to cause to happen."); State v. Rieman, 118 Kan. 577, Syl. ¶ 1, 235 P. 1050 (1925)
("In the statute making it a felony for any person to persuade, induce, entice or
procure any female person to go from one place to another within the state for the
purpose of prostitution, fornication, or concubinage, the word procure means to
bring about, effect, cause; and neither persuasion nor inducing or enticing
attraction are necessary to procurement.").
 The term "possess," on the other hand is passive, meaning: "1. To have in one's
actual control; to have possession of. 2. To have (a quality, ability, etc.)." Black's
Law Dictionary 1351 (10th ed. 2014). Accord Tripp v. United States Fire Ins. Co.,
141 Kan. 897, 899, 44 P.2d 236 (1935) (determining what word "possession"
means in automobile insurance policy by citing Webster's New International
Dictionary [2d ed.], which defined "possess," in part, as: "3. a To have and to hold
as property; to have a just right to; to be master of; to own, etc.").

The State contends that procuring is more than possession; and promoting means
making something available to others, as opposed to merely holding onto something. As
the trial court pointed out in rejecting Limburg's motion to dismiss based on multiplicity,
these terms are closely related and find their place on a continuum of activities in the
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child pornography industry. But this does not necessarily answer the question before this
court.

The question before us boils down to whether the terms "possess" and "procure"
overlap under the language of the statute defining "promoting," K.S.A. 2012 Supp. 21-
5510(d)(2). Since we cannot determine just what element of the promoting statute the
jury applied to find Limburg guilty, we have to assume it may have been procuring rather
than transmitting child pornography. Either would be consistent with the facts in this
case.

Limburg essentially contends that if someone possesses something, they must
invariably have procured it, and vice versa, but we believe this is an oversimplification.
We certainly understand that the act of procuring something may involve its possession,
but we reject Limburg's argument that such is always true. In certain circumstances a
person may obtain or procure an item for another person but will never possess it. A
simple example will suffice. If A orders a gift from a retailer who then ships the gift
directly to B, A has certainly procured the gift for B. But A has never possessed the gift.
Once the gift is delivered, B possesses it but did not procure it. Extending the analogy to
this case, Limburg certainly could have procured the offending materials for someone
else without actually possessing them himself. Thus Limburg's contention that procuring
invariably involves possessing lacks merit.

We are also mindful of the fact that the identical offense doctrine compares
elements of offenses. See Snellings, 294 Kan. at 151. Here, the elements being compared
are "promoting" and "possessing." The definition of "promoting" given to the jury does
not, as the parties seem to suggest, encompass additional elements of the offense. Rather,
that statutory definition merely lists options within a means, i.e., describes the types of
factual circumstances that may prove the material element of "promoting." See State v.
Brown, 295 Kan. 181, 196-97, 284 P.3d 977 (2012) (holding that "options within a
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means"—i.e., options that do not state material, distinct element such as options found in
definition statutes which merely describe material element or factual circumstance that
would prove crime—do not warrant application of the "alternative means rule/super-
sufficiency requirement"). In that regard, the trial court arguably erred in giving a
multiple acts instruction, but that is not an issue before this court. This point is made
simply to demonstrate that the identical offense sentencing doctrine does not, as Limburg
suggests, look for overlap between any option within a means for proving a material
element and an element of another offense. This is because the jury does not have to
unanimously agree about what option within the means it relied upon in finding the State
proved the material element. Thus, any such findings do not warrant sentencing on a
lesser offense.

Even if the trial court did look to factual overlap between options within means
and an element of a lesser crime, "factual overlap is not determinative of whether the
offenses" are identical. Williams, 299 Kan. at 926. Rather:

"'[T]he facts of the case are only relevant to determine which provisions of a statute
apply—a preliminary step—not as a final step of examining the record to determine what
evidence was used to prove the overlapping elements.' Snellings, 294 Kan. at 166. The
final step, whether the overlapping provisions contain identical elements, is a
determination that is made from the statute." Williams, 299 Kan. at 926-27.

It is important to note the parties' arguments concerning factual overlap in Limburg's case
based on similarities between the verbs "procuring" and "possessing" wholly overlook the
fact that in this case, the trial court found the greater offenses for promoting child
pornography were based on Limburg's act of promoting by transmitting, not procuring.
Thus, there was arguably no factual overlap in this case.

Even if there was factual overlap, the overlapping provisions of the statutes at
issue here do not contain identical elements:
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 The off-grid offense of sexual exploitation in violation of K.S.A. 2012 Supp. 21-
5510(a)(4) requires proof that the defendant engaged in promoting a performance
that included sexually explicit conduct by a child under the age of 18 or a person
the offender believed was under 18 "knowing the character and content of the
performance." In that context, "'performance' means any film, photograph,
negative, slide, book, magazine or other printed or visual medium, any audio tape
recording or any photocopy, video tape, video laser disk, computer hardware,
software, floppy disk or any other computer related equipment or computer
generated image that contains or incorporates in any manner any film, photograph,
negative, photocopy, video tape or video laser disk or any play or other live
presentation." K.S.A. 2012 Supp. 21-5510(d)(3).
 The severity level 5 offense of sexual exploitation in violation of K.S.A. 2012
Supp. 21-5510(a)(2), on the other hand, required the possession of "any visual
depiction of a child under 18 years of age shown or heard engaging in sexually
explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the
prurient interest of the offender or any other person." In this regard, "'visual
depiction' means any photograph, film, video picture, digital or computer-
generated image or picture, whether made or produced by electronic, mechanical
or other means." K.S.A. 2012 Supp. 21-5510(d)(5).

Simply put, the State did not have to prove any intent to arouse sexual desires or appeal
to prurient interests in order to secure a conviction of promoting a performance, so the
offenses are not identical.

For all of these reasons, we reject Limburg's argument that he should be sentenced
at the severity level 5 felony level based upon the identical offense doctrine.

Limburg's second issue on appeal challenges the burden-of-proof instruction. That
instruction, which was patterned after PIK Crim. 4th 51.010, read, in pertinent part:
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"If you have a reasonable doubt as to the truth of any of the claims required to be proved
by the State, you must find the defendant not guilty. If you have no reasonable doubt as
to the truth of each of the claims required to be proved by the State, you should find the
defendant guilty." (Emphasis added.)

Limburg argues he should get a new trial because the use of the term should effectively
negated the possibility of jury nullification. Stated another way, he argues "[i]f a jury
should convict then nullification is not an option." The State initially responds that this
court should not consider this error because it was invited by Limburg. Alternatively, the
State argues there was no error in giving this legally appropriate jury instruction; but even
if there was error, it was harmless.

Although Limburg admittedly did not object to the giving of this instruction at
trial, this does not mean, as the State briefly suggests, that he invited the error. As
mentioned briefly above, the invited error doctrine generally precludes a criminal
defendant from affirmatively inviting and leading a court into error and then complaining
of that error on appeal. Soto, 301 Kan. at 983. An appellate court generally declines to
apply the invited error rule where, for example, a defendant merely acquiesces in a trial
court's ruling on a jury instruction by, for example, failing to object. See 301 Kan. at 982-
83 (declining to apply invited error rule to defendant's challenge to omission of
instruction on second-degree murder where defendant did not object to State's request for
instruction and acquiesced in trial judge's ruling that instruction not proper under facts);
accord Hargrove, 48 Kan. App. 2d at 523 (holding: "Even if the invited error rule might
be appropriately applied to common trial decisions that unintentionally compromise a
given defendant's constitutional rights, it ought to be relaxed for those deficiencies in jury
instructions. Absent tactical intent on counsel's part, the shared responsibility for
preparing final jury instructions weighs against rigid application of invited error to deflect
a constitutional challenge."). Thus we decline the State's invitation to apply the invited
error doctrine under the facts of this case.
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Limburg's failure to object does, however, limit the scope of this court's review,
allowing this court to reverse only if it finds the challenged instruction clearly erroneous.
See K.S.A. 2015 Supp. 22-3414(3); State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309
(2013). Review for clear error in a jury instruction involves progressive steps. Under the
first step, this court must determine whether any error occurred. This requires unlimited
review of the entire record to determine whether the instruction was legally and factually
appropriate. If so, review stops there. If not, then this court moves on to the second step,
under which this court will affirm despite the instructional error unless it is firmly
convinced that the jury would have reached a different verdict absent the instructional
error. See State v. Clay, 300 Kan. 401, 408, 329 P.3d 484 (2014).

Notably, at least two other panels of this court have rejected this same challenge to
use of the term "should" in the burden of proof instruction under the first step of the
analysis. For example, in State v. Singleton, No. 112,997, 2016 WL 368083, at *4-6
(Kan. App. 2016) (unpublished opinion), petition for rev. filed February 26, 2016, the
defendant argued that the term "should" as used in PIK Crim. 4th 51.010 deprived the
jury of the option of nullification. In support, the defendant relied on our Supreme Court's
holding in State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014), that use of the
terms "must" and "will" where "should" now appears in the pattern instruction
inappropriately directed a verdict. Singleton, 2016 WL 368083, at *4-5. The Singleton
panel rejected that argument, explaining:

"[A]s every teacher instructing a class knows, and as every parent admonishing a child
knows, should is less of an imperative than must or will. [Citation omitted.] . . . Should as
used in this instruction is not the equivalent of 'must' or 'will' used in the instructions
discussed in . . . Smith-Parker. Should is advisory. It is not an imperative." 2016 WL
368083, at *6.

Similarly, in State v. Jones, No. 111,386, 2015 WL 4716235, at *5-6 (Kan. App. 2015)
(unpublished opinion), rev. denied 303 Kan. ___ (February 18, 2016), the panel found
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use of the term "should" in PIK Crim. 4th 51.010 was legally appropriate in rejecting
defendant's argument that the court erred in refusing his request to modify that term to
"may."

Limburg presents no compelling argument as to why this panel should reach a
different result in his case. We believe the decisions from other panels cited above were
well-reasoned in their holding under the first step of the analysis that there was no error
in the burden of proof instruction given by the trial court patterned after PIK Crim. 4th
51.010.

In his third and final issue on appeal, Limburg challenges the trial court's denial of
his motion to depart from the hard 25 sentences for his 10 convictions of the off-grid
offense of sexual exploitation. The State responds that the trial court was well within its
discretion in concluding the mitigating factors cited by Limburg in support of his motion
were not substantial and compelling reasons for the court to depart. Before addressing
these arguments, a review of the governing law, the trial court's decision, and this court's
standard of review is necessary for context.

To reiterate, the trial court imposed the standard sentences under the law. Again,
for each of Limburg's off-grid convictions of sexual exploitation of a child in violation of
K.S.A. 2012 Supp. 21-5510(a)(4), he faced a hard 25 sentence under Jessica's Law under
K.S.A. 2012 Supp. 21-6627(a)(1)(F). Because these were Limburg's first offenses under
Jessica's Law, the statute granted the trial court discretion to depart from the hard 25
sentences if it found "substantial and compelling reasons, following a review of
mitigating circumstances" to do so. See K.S.A. 2012 Supp. 21-6627(d). In this context,
our Supreme Court "'has defined "substantial" as "something that is real, not imagined;
something with substance and not ephemeral," while the term "'compelling' implies that
the court is forced, by the facts of a case, to leave the status quo or go beyond what is
ordinary."' [Citation omitted.]" State v. Jolly, 301 Kan. 313, 323, 342 P.3d 935 (2015).
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In ruling on Limburg's departure motion, the trial court had at its disposal a
nonexclusive statutory list of mitigating factors that our legislature identifies can, but do
not necessarily, constitute substantial and compelling reasons for departure from a hard
25 sentence under Jessica's Law. See K.S.A. 2012 Supp. 21-6627(d)(2)(A)-(F). Two of
those were cited by Limburg, i.e., the lack of significant history of prior criminal activity
and the age of the defendant at the time of the crime. K.S.A. 2012 Supp. 21-
6627(d)(2)(A), (F). Notably, however, "even though mitigating circumstances must be
present for a finding of substantial and compelling reasons, mitigating circumstances do
not necessarily equal substantial and compelling reasons." Jolly, 301 Kan. at 323. In fact,
"[t]here is no formula for this determination, and the list of nonexclusive mitigating
circumstances merely serves as a guide for analysis." State v. Ortega-Cadelan, 287 Kan.
157, 165, 194 P.3d 1195 (2008).

Limburg moved the trial court to impose "a durational departure sentence" of 96
months' imprisonment for all of his convictions, which represents twice the aggravated
presumptive guidelines sentence for a severity level 5 offense under K.S.A. 2012 Supp.
21-5510(a)(2) based on Limburg's criminal history score of F. See K.S.A. 2012 Supp. 21-
6804 (sentencing grid for nondrug crimes); K.S.A. 2012 Supp. 21-6819(b)(4) ("The total
prison sentence imposed in a case involving multiple convictions arising from multiple
counts within an information, complaint or indictment cannot exceed twice the base
sentence."). Technically speaking, this was not a request for a "downward durational
departure," which refers to "a departure from the grid box sentence dictated by the
intersection of severity level and criminal history to a shorter determinate prison
sentence." State v. Spencer, 291 Kan. 796, 828, 248 P.3d 256 (2011). Rather, Limburg
requested departures from off-grid life sentences. In support of his departure motion,
Limburg cited three mitigating factors: (1) his lack of significant criminal history, other
than convictions of driving under the influence; (2) his age (46), which statistically
corresponded to a lesser risk of recidivism; and (3) his "promotion" was: (a) little more
than "'passive sharing,'" which was "from a culpability standpoint . . . difficult, if not
16
impossible to distinguish" from the severity level 5 possession offense; and (b)
"significantly less egregious than the 'promoting' that is at the heart of the conduct
targeted by the statute," i.e., active manufacturing and distribution.

The trial court allowed the parties to present extensive arguments on this departure
issue prior to imposing Limburg's sentence. The majority of the arguments centered on
Limburg's insistence that his private act of downloading the videos to a shared server
without any financial expenditure or gain and for a relatively short period of time before
deleting them is significantly less egregious than having contact with the children in the
manufacturing or distributing of the offensive performances and depictions.

After taking the matter under advisement to study the law in more detail, the trial
court denied Limburg's departure motion. In support, the trial court focused on the third
mitigating factor advanced by Limburg. In that regard, the court found there was no
dispute that under the facts of this case, Limburg's "promoting" of the performances was,
indeed, "at the low end of [the] spectrum or this ambit of involvement" for the continuum
of seriousness of actions that our legislature has criminalized under K.S.A. 2012 Supp.
21-5210(a)(4). The court noted that one of those actions, i.e., "transmitting" is "what the
evidence showed that Mr. Limburg did in this particular case." The trial court highlighted
our legislature's decision not to distinguish between the verbs representing a "continuum
of seriousness" in describing the types of factual circumstances that can prove the
material element of the off-grid crime of sexual exploitation by "promoting" a
performance. Consequently, the court ruled it could not find substantial and compelling
reasons to grant a departure on the facts of this case and arguments advanced by the
parties. Limburg challenges that conclusion here.

This court reviews the trial court's determination that there were no substantial and
compelling reasons to depart from the hard 25 sentences in this case for an abuse of
discretion. See State v. Randolph, 297 Kan. 320, 336, 301 P.3d 300 (2013). A judicial
17
action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or
unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v.
Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Limburg bears the burden of proving the
trial court abused its discretion. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285
P.3d 361 (2012) (noting that party alleging abuse of discretion bears burden of proof).

In his brief on appeal, Limburg does not point this court to any errors of fact or
law made by the trial court. Thus, we are is limited to reviewing whether the trial court's
denial of Limburg's departure motion was arbitrary, fanciful, or unreasonable.

In support of his argument on appeal, Limburg essentially reiterates his argument
below. That is, he insists that his lesser degree of culpability, combined with the lesser
degree of harm and his minimal criminal history provided the trial court substantial and
compelling reasons to grant a departure. In support, Limburg points to cases that have
cited with approval the mitigating factors he relied upon in support of his motion, albeit
they did so in the context of reviewing a departure from sentences not imposed under
Jessica's Law. See, e.g., State v. Murphy, 270 Kan. 804, 807, 19 P.3d 80 (2001)
(recognizing defendant's lack of criminal history, which was "not sufficient to justify a
departure" on its own because it had been taken into account on criminal sentencing grid,
"could be considered in overall picture"), abrogated on other grounds by State v. Martin,
285 Kan. 735, 175 P.3d 832 (2008); State v. Favela, 259 Kan. 215, 235, 911 P.2d 792
(1996) (citing lesser degree of harm as mitigating factor in reviewing departure from
presumptive sentence for attempted second-degree murder).

The State responds that the trial court did not abuse its discretion in properly
considering each factor cited in Limburg's departure motion and finding they were not
substantial and compelling either individually or collectively. In support, the State cites
other cases that have found no abuse of discretion where the trial court denied departures
based on the same or similar mitigating factors relied upon by Limburg in addition to
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other mitigating factors not present here. See, e.g., State v. Tervino, 290 Kan. 317, 322-
23, 227 P.3d 951 (2010) (finding no abuse of discretion in denial of departure even
though defendant had little criminal history); State v. Robinson, 290 Kan. 51, 55-57, 222
P.3d 500 (2010) (finding no abuse of discretion in denial of departure even though
defendant had insubstantial criminal history, accepted responsibility, and demonstrated
remorse); State v. Gilliland, No. 100,802, 2010 WL 1379182, at *2-3 (Kan. 2010)
(unpublished opinion) (finding no abuse of discretion in court's denial of defendant's
motion to depart from concurrent hard 25 sentences under Jessica's Law based in part
upon his lack of prior criminal activity and age of 65). The State also goes to great
lengths to debunk the fallacies of Limburg's contention that his lack of direct involvement
in the actual sexual brutalization of the children depicted in the pornography he possessed
or the performances he promoted by leaving in the shared folder on ARES for others to
access should serve as a mitigating factor. See State v. Zabrinas, 271 Kan. 422, 430, 24
P.3d 77 (2001) (quoting New York v. Ferber, 458 U.S. 747, 759, 102 S. Ct. 3348, 73 L.
Ed. 2d 1113 [1982], in recognizing ongoing, intrinsic harm caused by distribution and
ongoing circulation of child pornography); State v. Coburn, 38 Kan. App. 2d 1036, 1062-
63, 176 P.3d 203 (2008) (citing Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240,
122 S. Ct. 1389, 152 L. Ed. 2d 403 [2002]; and Ferber, 458 U.S. at 761, in highlighting
State's interest "in protecting the children exploited by the [pornography] production
process" as well as a State's "particular and compelling interest in prosecuting those who
promote the sexual exploitation of children"); State v. Thompson, No. 111,326, 2015 WL
3874929 (Kan. App. 2105) (unpublished opinion) (citing Zabrinas and Ferber in
discussing ongoing harm to children exacerbated by circulation of photographs and films
depicting their sexual activity), rev. denied 303 Kan. __ (February 9, 2016).

The transcript of the hearing on Limburg's motion to depart reveals that the trial
court went to great lengths in acknowledging and considering the mitigating
circumstances asserted by Limburg before explaining why it denied his departure
requests upon finding those circumstances were not substantial and compelling. Limburg
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points to nothing about the trial court's decision that this court could deem arbitrary,
fanciful, or unreasonable.

Accordingly, we hold Limburg has not shown the trial court abused its discretion
in denying his motion for a departure from the concurrent hard 25 sentences imposed
upon his convictions of sexual exploitation based on promoting a performance of a child
under the age of 18.

Affirmed.