State v. Williams

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NOT DESIGNATED FOR PUBLICATION

No. 114,310

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHANON P. WILLIAMS,
Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed June 30, 2017. Convictions
affirmed, sentence vacated, and case remanded with directions.

Caroline Zuschek, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

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

Per Curiam: Shanon P. Williams appeals from his convictions and his sentences
for his crimes of sexual exploitation of his stepdaugher. Williams contends: (1) there was
insufficient evidence to support two of his convictions because the State did not prove
that his stepdaughter was under the age of 14 years at the time of these crimes; (2) these
convictions were multiplicitous; (3) the trial court erroneously admitted email
conversations without proper authentication; (4) the trial court erroneously admitted these
email conversations when they contained hearsay and the court gave no limiting
instruction; (5) the sentencing court erred by imposing lifetime postrelease supervision to
follow a life sentence; (6) the sentencing court abused its discretion by not granting a
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departure; and (7) the sentencing court abused its discretion by ordering that he serve
each of his life sentences and his 41-month prison sentence consecutively.

The facts leading to the charges in this case and the procedural history of the case
are well known to the parties and we need not repeat them here. It suffices to say that
Williams' convictions are based upon him inducing his stepdaughter to permit him to take
pornographic photos of her and then posting them on a website for the purpose of
distributing pornography to and trading pornography with other like-minded individuals.

After a 3-day trial, the jury convicted Williams of three counts of sexual
exploitation of a child. The court denied Williams' motion for a departure sentence and
imposed two consecutive life sentences without the possibility of parole for 25 years for
the off-grid convictions of sexual exploitation of a child, followed by a 41-month
sentence for the remaining severity level 5 conviction of sexual exploitation of a child.
The court also imposed lifetime postrelease supervision. Williams' appeal brings the
matter to us.

The Sufficiency of the Evidence to Support Williams' Off-Grid Convictions—the Age of
the Child-Victim

Williams contends that the evidence was insufficient to support the jury verdict
finding him guilty of two off-grid convictions of sexual exploitation of a child because
the evidence did not establish that the child-victim was under 14 years of age.

The age of the child at the time of the crime is the key difference between the off-
grid crime of sexual exploitation of a child (two of Williams' convictions for conduct
before the child's 14th birthday) and the level 5 felony crime of sexual exploitation of a
child (his third conviction for conduct after the child's 14th birthday.) If the child was
between the ages of 14 and 18, the crime is punishable as a severity level 5 felony. If the
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child was under the age of 14, the presumptive sentence is life imprisonment. See K.S.A.
2016 Supp. 21-5510(a) and (b).

In considering the sufficiency of the evidence to support a conviction, we review
the evidence in the light favoring the State to determine whether 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 doing so, we do not reweigh the evidence or assess
the credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016).

A verdict may be supported by circumstantial evidence, if such 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). There is no distinction between
direct and circumstantial evidence in terms of probative value. State v. McBroom, 299
Kan. 731, 754, 325 P.3d 1174 (2014).

Williams' off-grid crimes were alleged to have been committed between
September 13, 2011, and September 12, 2012. See K.S.A. 2016 Supp. 21-5510. They are
predicated upon the child-victim being less than 14 years of age. Here, the evidence
established that the child, Williams' stepdaughter, was born on September 13, 1998. She
turned age 14 on September 13, 2012.

On March 1, 2012, when the child was still age 13, Williams uploaded to a
Russian website various photos of the child and offered to trade these photos with others.
Mark Larkin of Homeland Security participated in the execution of a search warrant on
Williams' home in July 2013. Larkin interviewed Williams who admitted taking photos
of his stepdaughter up to 2 years earlier, which would have been when the child was
under age 14. When asking about the age of the child in the photographs, Larkin asked:
"So, 13?" Williams confirmed, "Yeah."

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Williams places unjustified reliance on State v. Perez-Rivera, 41 Kan. App. 2d
579, 582-83, 203 P.3d 735 (2009), in which our court determined that the jury's
observations of the appearance and demeanor of the victim and the fact that she had been
married for 2 1/2 years were insufficient to determine that the victim was over the age of
18, an element of the crime. But here, unlike in Perez-Rivera, there was specific evidence
introduced at trial to establish the child's age.

Williams argues further that the trading emails admitted into evidence were dated
after the child's 14th birthdate, and there was evidence that Williams received a camera as
a gift after the child's 14th birthdate. Williams argues that this evidence supports his
theory that his stepdaughter was 14 years of age when the crimes occurred. But the jury
heard the conflicting evidence and concluded otherwise. It is not our role to reweigh
evidence and substitute our view of the evidence for that of the jury. Besides, Williams
was also convicted of a level 5 felony for conduct occurring after his stepdaughter's 14th
birthday.

Viewing the evidence in the light favoring the State, there is sufficient evidence to
support a finding that Williams' stepdaughter was under the age of 14 at the time of these
off-grid crimes, a necessary finding for Williams' conviction of two off-grid counts of
sexual exploitation of a child.

Multiplicity

Williams argues that his three convictions are multiplicitous because they are
based on the same underlying conduct. This is a question of law over which we have
unlimited review. State v. Belt, 305 Kan. 381, 407, 381 P.3d 473 (2016). Allegations of
multiplicity may be addressed for the first time on appeal in order to serve the ends of
justice and prevent a denial of fundamental rights. State v. Weber, 297 Kan. 805, 809,
304 P.3d 1262 (2013).
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Multiplicity is charging a single offense in several counts of a complaint. It creates
the potential for multiple punishments for a single offense in violation of the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section
10 of the Kansas Constitution Bill of Rights. Thus, a defendant may not be charged in
several counts of a complaint for a single offense. See State v. Overman, 301 Kan. 704,
Syl. ¶ 4, 348 P.3d 516 (2015); State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48
(2006).

The key inquiry when considering whether convictions were multiplicitous is
whether the convictions were for the same offense; that is, (1) do the convictions arise
from the same conduct and (2) by statutory definition are there two offenses or just one?
State v. King, 297 Kan. 955, 970, 305 P.3d 641 (2013).

In determining whether the convictions arose from the same conduct, we consider
(1) whether the acts occurred at or near the same time; (2) whether the acts occurred at
the same location; (3) whether there was a causal relationship between the acts,
particularly whether there was an intervening event; and (4) whether a fresh impulse
motivated some of the conduct. State v. Pribble, 304 Kan. 824, Syl. ¶ 3, 375 P.3d 966
(2016).

Here, the jury was presented with three separate charges for sexual exploitation of
a child. See K.S.A. 2016 Supp. 21-5510(a). Counts I and II covered conduct during the
same time period, the year before the child's 14th birthday, but the conduct charged was
not the same in these counts. Count I charged Williams with using or persuading his
stepdaughter, who was less than 14 years of age, to engage in sexually explicit conduct
with the intent to promote a performance. See K.S.A. 2016 Supp. 21-5510(a)(1). Count II
charged Williams with knowingly promoting a performance that included sexually
explicit conduct by a person less than 14 years of age. See K.S.A. 2016 Supp. 21-
5510(a)(4).
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These charges are separate and distinct. Count I involved Williams persuading his
stepdaughter to pose for the pornographic photos with the intent to promote a
performance, that is, by displaying the photos on the Russian website. Count II involved
Williams actually promoting the performance by arranging to post them on the Russian
website. Counts I and II are not multiplicitous because they require proof of different
conduct for a conviction.

Count III involved conduct during a different time period than the period involved
in Counts I and II. Counts I and II involved Williams' conduct during the year before the
child's 14th birthday. Count III covered the period after the child's 14th birthday. On this
basis alone, it is clear that Count III is not multiplicitous with the previous two counts.

But Williams claims that he took photographs on only one occasion, so he should
not be punished with multiple convictions for this one photo session. Nevertheless, the
photos Williams took showed his stepdaughter in different parts of the house and with
different items of clothing, suggesting more than one photo session. His comment on the
website that the child in the photos was "13, 14" also suggests that the photographs were
taken on more than one occasion. In any event, Williams' convictions cover different
conduct at different times. Counts I and II relate to different conduct—persuading his
stepdaughter to pose for the pornographic photos versus arranging to post them on the
Russian website. Count III relates to a time period different from the time period of
Counts I and II. Thus, we are not persuaded that Williams' convictions for sexual
exploitation of a child are multiplicitous.

Authentication of Emails

Next, Williams argues that the trial court erred in admitting without proper
authentication, and over his objection, email conversations on the shannagirlts email
account with an unknown third party who used the name Ray. Williams argues that
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proper authentication requires a showing that he participated in the email conversations.
We review the trial court's action in admitting these emails for any abuse of discretion.
State v. Hill, 290 Kan. 339, 364, 228 P.3d 1027 (2010). Judicial action constitutes an
abuse of discretion if (1) no reasonable person would take the view adopted by the trial
court; (2) the court's action was based on an error of law; or (3) was based on an error of
fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).


Before a writing may be received into evidence, it must be authenticated. K.S.A.
60-464. A party proffering a writing satisfies the authentication requirement by
presenting evidence sufficient to support a finding that the writing in question is what the
proponent claims. State v. Robinson, 303 Kan. 11, 225, 363 P.3d 875 (2015), cert. denied
137 S. Ct. 164 (2016), disapproved of on other grounds by State v. Cheever, 304 Kan.
866, 375 P.3d 979 (2016). Here, the foundation evidence would have to show that the
emails were what they purport to be. This is not a high burden; our Supreme Court has
characterized it as "minimal" or "slight." Robinson, 303 Kan. at 225.

Kansas law favors the admission of relevant evidence, no matter how slight its
probative value. It is the jury's role to determine how much weight should be given to the
evidence. See State v. Carter, 284 Kan. 312, 328, 160 P.3d 457 (2007).

Foundation evidence may be circumstantial or indirect. Circumstantial evidence
may include the writing's appearance, contents, substance, internal patterns, or other
distinctive characteristics. Once a writing has been properly authenticated, any
conflicting evidence goes to the writing's weight, not to its admissibility. Robinson, 303
Kan. at 225-26.

In Robinson, our Supreme Court held that emails found in the defendant's
possession, which were seized pursuant to a search warrant, were authenticated by the
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law enforcement officer's testimony describing how the emails were seized. 303 Kan. at
234.

In Williams' case, foundation was established by the State's testimony that (1)
Williams' stepdaughter was present when a search warrant was executed at his residence;
(2) she was identified as the young girl in the pictures posted on the Russian website; (3)
the authorities seized a computer found in Williams' living room, a computer which
Williams had access to and control over; (4) the computer had been used to access the
Russian website and to upload pornographic pictures; (5) the computer contained
thousands of emails involving communications with at least 250 other email accounts; (6)
the email string conversations on Williams' computer related to children engaging in
sexual activity, including his stepdaughter; (7) Williams provided Larkin the passwords
and credentials to sign onto the Gmail account, the email address from which the email
conversations took place, and that had been used to access the Russian website; (8)
Williams' computer had accessed the Gmail account; (9) emails on Williams' computer
were similar to the emails on the Gmail account; and (10) a common theme of the
thousands of emails on the account, including the email being authenticated, was trading
in child pornography.

We conclude that the emails in question were properly authenticated. Although
Williams disputed the fact that it was he who authored the email messages found on his
computer, that disputed issue goes to the weight and credibility of the evidence, not its
authentication or admissibility. See 303 Kan. at 226; State v. Peoples, 227 Kan. 127, 133,
605 P.2d 135 (1980). The admitted emails tended to prove that Williams used the
shannagirlts email account to trade sexually explicit photographs of his stepdaughter.

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Emails as Hearsay

Williams claims the email conversations admitted into evidence over his objection
constituted hearsay. The trial court ruled that the email conversations did not constitute
hearsay because they were not offered to prove the truth of statements made by the party
with whom Williams was communicating; rather, the statements merely placed Williams'
own statements in the emails in proper context.

In considering this issue, we note that all relevant evidence is admissible absent a
statutory prohibition. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence
is relevant if it has "any tendency in reason to prove any material fact." K.S.A. 60-401(b).
K.S.A. 2016 Supp. 60-460 defines hearsay as "[e]vidence of a statement which is made
other than by a witness while testifying at the hearing, offered to prove the truth of the
matter stated." By definition, out-of-court statements not offered to prove the truth of the
matter asserted are not hearsay.

Hearsay evidence is not admissible unless it falls within one of the statutory
exceptions. Whether the evidence satisfies a hearsay exception is an issue of law for us to
resolve, but whether the trial court erred by admitting a statement under an applicable
hearsay exception is reviewed for any abuse of discretion. State v. Coones, 301 Kan. 64,
80, 339 P.3d 375 (2014).

Here, the email conversations between Williams (under the email pseudonym
shannagirlts) and the person known as Ray did not constitute hearsay because Ray's
statements were not offered to prove their truth but to prove what Williams said and to
place Williams' responses in proper context. The trial court cited State v. Ninci, 262 Kan.
21, 936 P.2d 1364 (1997), for the holding that statements not offered to prove the truth of
the matter asserted do not constitute hearsay. See State v. Getz, 250 Kan. 560, 567, 830
P.2d 5 (1992).
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In Ninci, the Supreme Court approved the admission of a videotape of a police
interview conducted by an officer who was unavailable to testify at trial. The Ninci court
concluded that the statements of the officer were offered for the purpose of placing the
defendant's answers into an understandable context. 262 Kan. at 51.

In Getz, our Supreme Court held that the district court erred in excluding a
conversation between the defendant and a witness who was unavailable for trial. The
court stated: "'If an utterance previously made out of court is offered in evidence merely
for establishing what was then said [in response], and not for establishing the truth of the
statement, the testimony is not hearsay.'" 250 Kan. at 567.

Here, the email conversations with the absent Ray were properly authenticated.
There is no claim that what Ray said during the conversation was true, but rather that he
said it, and saying it elicited a response from Williams. Ray's statements gave context to
Williams' responses. The truth that the State contended was to be found in the exchange
was not Ray's remarks but Williams' statements in response; and Williams' statements in
response evidenced a transaction in which Williams provided passwords that gave Ray
access to photos of Williams' stepdaughter. The trial court properly admitted the email
conversations into evidence.

With this, we need not address the State's other basis for admitting this evidence;
that is, that the statements were admissible under the hearsay exception found in K.S.A.
2016 Supp. 60-460(i)(2) for the statements of coconspirator Ray in his conspiracy with
Williams to obtain and distribute child pornography.

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Limiting Instruction for Email Evidence

In the alternative, Williams argues that the trial court should have given the jury a
limiting instruction that advised the jury that Ray's statements in the email exchange were
not offered for the truth of his statements.

During the discussion of Williams' hearsay objection the trial court asked about
giving a limiting instruction, but neither party took a position on whether a limiting
instruction should be given. The court noted that it would "reserve any further comment"
on whether to give a limiting instruction.

At the later instructions conference, Williams did not request a limiting
instruction, nor did he object to its absence. Thus, we apply the clear error standard in our
review of the issue. If a limiting instruction should have been given, we will reverse only
if we are firmly convinced that the jury would have returned a more favorable verdict had
the limiting instruction been given. See State v. Cooper, 303 Kan. 764, 771, 366 P.3d 232
(2016); State v. Williams, 295 Kan. 506, Syl. ¶¶ 4-5, 286 P.3d 195 (2012).

Williams claims prejudice but does not explain how a limiting instruction would
have changed the result of the trial. The statements Williams made in the email exchange
—not Ray's statements—helped prove Williams' intent to distribute a password in
exchange for child pornography. The password gave Ray access to files containing
pornographic photos of Williams' stepdaughter. We are satisfied that the lack of a
limiting instruction did not affect the outcome of the trial. Thus, Williams has failed to
show clear error requiring reversal.

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Lifetime Postrelease Supervision

Williams correctly argues that the sentencing court ordered lifetime postrelease
supervision when it had no authority to do so. Two of Williams' convictions—for Counts
I and II—were for off-grid felonies. A sentencing court does not have the authority to
impose lifetime postrelease supervision in conjunction with an off-grid sentence. State v.
Page, 303 Kan. 548, 549, 363 P.3d 391 (2015); State v. Williams, 298 Kan. 1075, 1090,
319 P.3d 528 (2014). The order for lifetime postrelease supervision, as reflected in the
journal entry, must be vacated.

Departure Motion

Williams argues the sentencing court abused its discretion in denying his motion
for a downward durational departure because the court failed to properly consider the
mitigating circumstances Williams claimed as justification for a shorter sentence.

Williams moved for a departure sentence under K.S.A. 2016 Supp. 21-6627(d)(1)
based on the following claimed mitigating circumstances: (1) he had only one prior
felony conviction, a nonperson felony 12 years earlier; (2) he committed the acts in this
case while he was under the influence of alcohol and could not fully appreciate the nature
of his actions; (3) he had the support of his family; and (4) he had been gainfully
employed prior to this case and could be a productive member of society. Williams
argued but did not present any evidence at his sentencing hearing to support these
claimed mitigating circumstances. In denying Williams' motion, the court stated:

"This kind of act, action is an extreme form of child abuse that leaves lifetime
emotional if not physical injuries. I find the actions of the defendant abhorrent. There
was, the evidence revealed the defendant basically regarded the child as an object lacking
of any humanity. These offenses occurred over almost a two year period. There was
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indication that they extended over a longer period in the testimony. One of the purposes
of punishment, of the criminal justice system is pure punishment. Also protection of the
public and that is the act of what I'm about to do is I'm fulfilling my [role] of protecting
the public from Mr. Williams."

Under K.S.A. 2016 Supp. 21-6627(a)(1)(F) and (d)(1), the sentencing court must
impose life imprisonment with a mandatory minimum sentence of 25 years on a first-time
offender over the age of 18 who commits the crime of sexual exploitation of a child under
the age of 14 unless the district court finds "substantial and compelling reasons,
following a review of mitigating circumstances, to impose a departure." The statute lists
six nonexclusive mitigating factors for departure. K.S.A. 2016 Supp. 21-6627(d)(2). We
review the sentencing court's decision on Williams' departure motion for an abuse of
discretion. See State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013).

Under K.S.A. 2016 Supp. 21-6627(d)(1), the sentencing court must weigh the
claimed mitigating factors to determine whether they collectively justify a more lenient
sentence. See State v. Beaman, 295 Kan. 853, 866, 286 P.3d 876 (2012). This weighing
of claimed mitigating factors must be done without regard to any aggravating factors. See
State v. Jolly, 301 Kan. 313, Syl. ¶ 5, 342 P.3d 935 (2015).

In Jolly, our Supreme Court clarified the two-step process a sentencing court must
apply in evaluating a defendant's motion for departure:

"[T]he sentencing court first [reviews] the mitigating circumstances without any attempt
to weigh them against any aggravating circumstances. Then, in considering the facts of
the case, the court determines whether the mitigating circumstances rise to the level of
substantial and compelling reasons to depart from the otherwise mandatory sentence."
301 Kan. 313, Syl. ¶ 5.

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K.S.A. 2016 Supp. 21-6627(d)(1) "makes no provision for the weighing of aggravating
circumstances against the mitigating circumstances to determine if a departure should be
imposed." 301 Kan. at 321. Nevertheless,

"the facts of the case—including any egregious ones—are essential for a judge to
consider in deciding if a departure is warranted based on substantial and compelling
reasons. Simply stated, a judge does not sentence in a vacuum. The sentencing judge is to
consider information that reasonably might bear on the proper sentence for a particular
defendant, given the crime committed, including the manner or way in which an offender
carried out the crime." 301 Kan. at 323-24.

In State v. McCormick, 305 Kan. 43, 50-51, 378 P.3d 543 (2016), our Supreme
Court reaffirmed its holding in Jolly. The court found it was required to remand the case
for resentencing to remedy the error of weighing aggravating factors against mitigating
factors. McCormick, 305 Kan. at 50-51.

Here, the record is ambiguous as to whether the sentencing court followed the
procedure set out in Jolly. It appears that the sentencing court may have considered
aggravating factors in denying Williams' departure motion. Under these circumstances,
we are required to vacate Williams' sentence and remand the case for reconsideration of
Williams' departure motion and for resentencing consistent with our Supreme Court's
holding in Jolly.

Consecutive Sentences

Finally, Williams claims the sentencing court abused its discretion in imposing
consecutive lifetime sentences rather than ordering him to serve these sentences
concurrently. While we already have vacated Williams' sentences and remanded the case
for resentencing, we will address this issue because it is likely to be raised at the
resentencing hearing.
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Consecutive sentences imposed under the Kansas Sentencing Guidelines are
presumptive sentences which are not subject to review. State v. Frecks, 294 Kan. 738,
739, 280 P.3d 217 (2012). But a distinction is made when the sentence imposed is an off-
grid sentence. In State v. Ross, 295 Kan. 1126, Syl. ¶ 12, 289 P.3d 76 (2012), our
Supreme Court held:

"A life sentence for an off-grid crime is not a 'presumptive sentence' as contemplated in
K.S.A. 21-4703(q) because imposition of the life sentence was not arrived at by applying
the applicable grid block of the sentencing guidelines. Accordingly. when a defendant is
convicted of both an off-grid crime and an on-grid crime and the district court orders the
presumptive sentence for the on-grid crime to run consecutive to the life sentence for the
off-grid crime, the resulting controlling sentence is not entirely a 'presumptive sentence'
as defined in K.S.A. 21-4703(q). Thus, K.S.A. 21-4721(c) does not prevent a defendant
from challenging a district court's decision to impose consecutive sentences in a multiple
conviction case involving both off-grid and on-grid crimes."

Nevertheless, a sentencing court that simultaneously imposes sentences for multiple
convictions generally has discretion to order the sentences to be served consecutively.
State v. Morningstar, 299 Kan. 1236, Syl. ¶ 4, 329 P.3d 1093 (2014).

Williams argues that the sentencing court abused its discretion in ordering
consecutive life sentences because no reasonable person would agree with such sentences
in view of the fact that perpetrators of more serious crimes often receive shorter
sentences.

Here, the sentencing court stated that Williams' acts were an "extreme form of
child abuse" that "leaves lifetime emotional . . . injuries." The court referred to Williams'
crimes as "abhorrent" and noted that Williams regarded his stepdaughter as an object
"lacking of any humanity."

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The court's reasoning is supported by evidence in the record. Williams persuaded
his 13-year-old stepdaughter, who suffered from autism, to pose for pornographic
pictures that he traded internationally for other child pornography. On the website he
described his stepdaughter as "dumb as a box of rocks." He used cigarettes to induce this
child to pose for him. Williams had thousands of email contacts with at least 250
individuals regarding the trading of child pornography. Accordingly, we cannot say that
no reasonable judge would have imposed the consecutive sentences imposed in this case.

Convictions affirmed, sentence vacated, and case remanded with directions; order
imposing lifetime postrelease supervision is vacated.