Agg habitual sex offender sentences reversed

Shawn Minihan won in State v. Trautloff, No. 100,425 (Kan. Oct. 9, 2009), a Franklin County rape/agg crim sodomy case, remanding one count of sexual exploitation of a child for a new trial and vacating and remanding four life sentences without possibility of parole imposed under the aggravated habitual sex offender provisions of K.S.A. 21-4642(c)(1). On the sentencing issue, the KSC held that although Mr. Trautloff had two prior convictions for listed sex offenses, they were entered on the same day and therefore constituted a single "conviction event." Under the statute, imposition of life without possibility of parole requires two prior conviction events. As a result, the KSC vacated the sentences for rape agg criminal sodomy, and aggravated indecent liberties and remanded for resentencing, although it noted that regardless of what sentencing provision is ultimately used, given his age, Mr. Trautloff is not likely to ever be released from prison.

On the sexual exploitation with a child conviction, the KSC observed that the state charged Mr. Trautloff with sexual exploitation by unlawfully displaying a picture of a child under the age of 14. Although the KSC acknowledged that a person can be convicted of sexual exploitation by many alternative means to "display," (like procuring, selling, providing, selling, transmitting, etc), because the state charged display, it was bound to prove display:

By including the phrase "displayed such picture" in the complaint, the State limited itself to a theory that Trautloff committed only that version of the offense. The wording of a complaint is binding on the State in pursuing its theory before a jury.

But when instructing the jury, the district court included all possible means for conviction under the statute defining sexual exploitation. The KSC held that, because there was extensive evidence of alternative means, it could not conclude that the overbroad instruction was harmless:

The broad instruction allowed the jury to convict Trautloff of displaying or procuring or producing a photograph that included sexually explicit conduct by a child under 14 years of age. It did not compel the jury to find that Trautloff displayed a picture, as alleged in the complaint. As previously described, the evidence of "procuring" or "producing" a photograph was direct and overwhelming, while the evidence that Trautloff "displayed" a photograph or video was minimal and circumstantial. Although Trautloff did not object to the instruction at trial, the instruction was clearly erroneous because we cannot be confident that the jury convicted him only on the basis of the single alternative theory charged and instructed upon. There exists a real possibility that the jury would have rendered a different verdict if the district court had instructed only as to displaying.

So, the KSC remanded for a new trial on sexual exploitation of a child.

Here is coverage from the Lawrence Journal World.