Clear error plus?

Michelle A. Davis won in State v. Tommy Jones, No. 119,764 (Kan. August 6, 2021), obtaining reversal of two counts in a Sedgwick County sexual exploitation of a child prosecution. The state had charged Mr. Jones in two counts with ""promot[ing] any performance that includes sexually explicit conduct by a child under eighteen (18) years of age . . . knowing the character and content of the performance." But the jury instructions only required the state to prove he "persuaded, induced, or enticed the child victim to engage in sexually explicit conduct 'with the intent to promote a performance.'"  Unsurprisingly, the state admitted that the instructions for these two counts were legally erroneous.

The real question on appeal was whether the error required reversal. Because the instructions were not objected to below, the COA held they were not clearly erroneous. And this is the interesting aspect of this case--the ongoing difficulty squaring clear error review with the constitutional harmless error test. The KSC recognized that omission of an essential element is a significant constitutional error, which normally would trigger application of the constitutional harmless error test.  But it went on to hold, in form at least, that because the error was not raised at the district court, the clear error test for instructional errors should apply. But it went on to find that the error was reversible in this case in terms that sound a lot like constitutional harmless error review: 

The overlap of "sexy" with "sexually explicit conduct" is not so complete as to warrant our firm belief, on appellate review, that the error had little likelihood of changing the result at trial.

In its discussion of the proper reversal standard, the KSC cited State v. Daniels, 278 Kan. 53, 58-63, 91 P.3d 1147 (2004) as reviewing the omission of an element for clear error, but noting the need to evaluate harmlessness under the test set forth in Neder v. United States, 527 U.S. 1, 17  (1999). So it may be that for some significant constitutional instructional errors, although appellate courts are still called to conduct clear error review for reversal, it may be a slightly more robust species of clear error.

As an aside, the reversal of these two counts led to the reinstatement of two other counts that had been vacated by the COA as multiplicitous, so it is not clear if this decision will impact Mr. Jones' sentence that much. But keep it in mind when thinking about reversal standards for instructional issues involving constitutional error.