State v. Brunson

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NOT DESIGNATED FOR PUBLICATION

No. 118,555

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EDWARD BRUNSON,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed February 7,
2020. Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Ethan Zipf-Sigler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., LEBEN, J., and WALKER, S.J.

PER CURIAM: Edward Brunson seeks the reversal of his convictions on six counts
of aggravated sodomy, primarily arguing that evidence of other sex crimes he had
committed was improperly admitted at his trial. Although a statute, K.S.A. 2018 Supp.
60-455(d), allows the admission of such evidence against defendants in sex-crime cases,
Brunson argues that the statute violated his rights under the Kansas Constitution.

But the Kansas Supreme Court recently held in State v. Boysaw, 309 Kan. 526,
536, 439 P.3d 909 (2019), that K.S.A. 2018 Supp. 60-455(d) doesn't violate rights
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guaranteed by the United States Constitution. And Kansas courts have consistently held
that the Kansas constitutional provisions that Brunson says were violated provide the
same protections as the analogous federal constitutional provisions. See 309 Kan. at 537.
Brunson hasn't explained why this longstanding interpretation of the Kansas
constitutional provisions is incorrect, so he has not shown that this statute violates the
Kansas Constitution.

Brunson also argues that this evidence should not have been admitted because,
even under the statute, the evidence must be more probative of a disputed issue than
unduly prejudicial against the defendant. But the district court's decision on that point is
reviewed only for an abuse of discretion, and we conclude a reasonable person could
agree with the district court's conclusion that the evidence was more probative than
prejudicial.

Brunson makes two additional arguments unrelated to his evidentiary claims. First,
he contends that the prosecutor made improper statements during jury selection and
opening argument to the jury. But we conclude that those statements were within the
broad discretion given to attorneys presenting a case at trial. Second, Brunson contends
that the district court erred by sentencing him to three consecutive life sentences without
the chance of parole for his crimes. As he points out, a person can't really serve three life
sentences; we all have but one life. But sentences serve many purposes, including
retribution, and the Kansas Supreme Court has upheld several other sentences that would
exceed a defendant's life expectancy. We find no error in the sentences imposed here.

Brunson has not shown that the district court erred when conducting his trial or
when sentencing him. We therefore affirm the district court's judgment.

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FACTUAL AND PROCEDURAL BACKGROUND

In 2015, Brunson's sister, E.B., reported that Brunson had sexually abused her son,
A.E., and his cousin, A.M., beginning in 2011 at the Kansas City, Kansas home of the
woman they considered to be their grandmother. E.B. told the jury that she learned that
Brunson had molested A.E. and A.M. shortly in 2015, when her sister, A.T., called her
and told her that their aunt had told A.T.

A.T. told the jury that she found out that Brunson had molested the boys on the
day of Grandmother's funeral in 2012. She said Brunson's girlfriend had told the aunt that
Brunson "had been touching the kids." A.T. also said A.M. initially denied that Brunson
had molested him. It wasn't until a couple of years after the aunt initially told A.T. what
Brunson had done that A.M. confirmed that what the aunt had said was true. A.T. told the
jury that A.M. wrote on a piece of paper that Brunson had touched him and A.E. A
couple of days after she found out about the abuse, A.T. said she called E.B. and told her.

E.B. said that after she and A.T. spoke, she asked A.E. if what A.T. had said was
true. She said A.E. initially denied it, but that after a few minutes he admitted that Brunson
had molested him. Although E.B. told the jury that she tried to get A.E. to tell her the
details of Brunson molesting him, A.E. didn't want to talk to her because it was
embarrassing. After the conversation between E.B. and A.E., E.B. went to A.T.'s house;
A.M. then told E.B. that Brunson had also molested him. Shortly after that, E.B. reported
the crimes to the Kansas City, Kansas Police Department.

The officer working the report desk when E.B. reported what happened, Phil
Schwery, testified at trial. He said that both A.E. and A.M. came to the report desk and
told Schwery what had happened. Then Schwery described how the boys used a cell
phone note application to type out a message describing what Brunson had done to them.
Schwery read that cell phone note from his report:
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"He made us suck it. He sucked ours. He put our faces in the pillows so we couldn't be
heard. When we tried to make him stop, he put it in more. He told us that it was okay and
nobody has to know. When we were in the basement, he would make us do things
together and made us do things to each other that we didn't want to do . . . . He would
guard the doors, he would make us pee in his mouth, he made us watch him pee. He told
us stories about how he had sex with our mamas. He said that he had sex with our Uncle
. . . . He told us that if we did what he said, he would give us money or something,
basically bribing us to do things with him. When we had family get-togethers, he would
stare at us to make sure we don't tell and we would look away and he always had a way
to get to us. And the reason we never said nothin' is 'cause we was scared to lose our
parents."

Schwery said his involvement with the case ended after he interviewed the boys.

A.M. was 18 years old when the trial took place. He told the jury that he first met
Brunson, his uncle, when A.M. was about 10 years old. He said that he first met Brunson
at Grandmother's house and that the abuse began in the summer after they met.

A.M. said he would talk to Brunson at Grandmother's house because Brunson cut
his hair. After Brunson finished cutting A.M.'s hair, A.M. said he went to Brunson's room
to watch T.V. and when Brunson came into his room, he locked the door and told A.M. to
take his clothes off. After that, A.M. said Brunson took his penis out and told A.M. to
kiss it; then Brunson performed anal sex on A.M. A.M. said that Brunson cut his hair
every other week and that the sexual abuse would happen every time he got his hair cut.

A.M. told the jury that Brunson started to abuse A.E., who was eight or nine years
old at the time, about one to two years after Brunson started to abuse A.M. He said the
first time Brunson abused A.M. and A.E. together, Brunson had asked them "to pee in his
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mouth." A.M. also said that Brunson asked A.M. and A.E. to "suck each other's
penis[es]" and that Brunson tried to perform anal sex on A.E. that day.

A.M. said that Brunson threatened to kill him if he ever told anyone about what
Brunson had done to him and A.E. He said he never told anyone about the abuse because
he didn't want his mom or anyone else in the family to get in trouble. Finally, A.M. said
the abuse happened about every other week until he was 14 or 15 years old—a period of
about four years—but that Brunson had abused A.E. fewer times. A.M. said that the
abuse finally ended when Grandmother died.

A.E., who was 16 years old at the time of trial, also testified. He told the jury that
like A.M., he went to Grandmother's house to visit and have Brunson cut his hair. A.E.
said that Brunson would sometimes tell him and A.M. to go into his room and "[Brunson]
used to like [to have] oral sex and stuff with us and physical sex."

A.E. described how Brunson would make him and A.M. perform oral sex on
Brunson, how Brunson would perform oral sex on the boys, and how Brunson would
make the boys perform oral sex on each other. Then A.E. told the jury that Brunson also
would perform physical—or anal—sex on him and that Brunson would make A.M.
perform anal sex on A.E. A.E. said that he never told anyone what happened because
"[Brunson] always said if we tell, he's gonna hurt us or have somebody hurt us." A.E.
echoed A.M.'s statement that Brunson had performed more sex acts on A.M. than on A.E.

When asked about his report to the police officer, A.E. said he wrote what had
happened in a note app on his cell phone. He said that he wrote most of the note he
showed to the police officer but that A.M. also contributed to it. Finally, like his cousin,
A.E. said Brunson threatened to hurt him if he ever told anyone about what had
happened.

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When Brunson's girlfriend testified, she described how her relationship with
Brunson developed and how it became more serious after Grandmother died. The
girlfriend said Brunson moved in with her shortly after Grandmother died. She told the
jury that around the time Grandmother died Brunson "got to talking about the boys and
what had happened . . . ." She said she told Brunson that he needed to tell the boys' moms
so the boys could get tested for HIV. After that conversation, the girlfriend told Brunson's
aunt what Brunson had told her.

The State also presented evidence that Brunson had a propensity to commit sexual
abuse against minors. At a pretrial hearing, the State asked the court to admit evidence of
Brunson's prior sex-crime convictions, including one for sodomizing an 11-year-old girl
and one for raping his sister. The court granted the State's request. Then at trial, over
Brunson's objection, E.B. testified that Brunson had sent her a letter when she was
younger in which he admitted to molesting her and A.T. She also told the jury that
Brunson had made sexually charged comments towards her as recently as 2011 or 2012.
The court also allowed Brunson's other sister, A.T., to tell the jury how Brunson raped
her when she was 12 years old and that Brunson went to jail for that crime.

Brunson called the aunt to testify in his defense. Her testimony was consistent
with the testimony that Brunson's girlfriend and sisters gave. She said that in 2012, after
Brunson's girlfriend told her about what Brunson had done, she "went back to [Brunson's
sisters] and explained to them what [Brunson's girlfriend] had told me what had happened
to the boys."

Brunson testified in his own defense. He told the jury that he and his girlfriend
broke up with each other because he was diagnosed with HIV and he wanted to be in an
open relationship and she didn't. He also denied ever telling his girlfriend that he had
molested his nephews. Then Brunson said that he and his girlfriend lived together from
the time Grandmother died until "the end of 2014 [to the] beginning of 2015."
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The jury convicted Brunson of all six counts. The district court sentenced him to
life in prison without the possibility of parole on each of the six counts of aggravated
criminal sodomy. Although each sentence would be sufficient to keep Brunson in prison
for his entire life, the district court made three of the sentences consecutive to one
another, giving Brunson three consecutive life-without-parole sentences. (The other
sentences are concurrent, so they run at the same time as the first life-without-parole
sentence.)

Brunson has appealed to this court.

ANALYSIS

I. Brunson Has Not Shown that 60-455(d) Violates Rights Guaranteed Under the Kansas
Constitution.

Brunson first argues that K.S.A. 2018 Supp. 60-455(d) is unconstitutional because
it erodes a defendant's fundamental right to a presumption of innocence by allowing a
jury to consider a defendant's prior convictions. He encourages this court to find K.S.A.
2018 Supp. 60-455(d) unconstitutional "because it denies defendants the right to a fair
trial and due process under the Kansas Constitution."

We should note that Brunson raises this issue for the first time on appeal.
Although the general rule is that we don't address issues raised for the first time on
appeal, an exception—when consideration of the claim is necessary to prevent the
potential denial of fundamental rights—applies here. See State v. Reed, 306 Kan. 899,
902, 399 P.3d 865 (2017); State v. Thatch, 305 Kan. 72, 81, 378 P.3d 522 (2016).

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Whether K.S.A. 2018 Supp. 60-455(d) is unconstitutional is a question of law, so
we have unlimited review. Miller v. Johnson, 295 Kan. 636, 647, 289 P.3d 1098 (2012).
"When a statute's constitutionality is attacked, the statute is presumed constitutional and
all doubts must be resolved in favor of its validity. If there is any reasonable way to
construe that statute as constitutionally valid, this court has the authority and duty to do
so." 295 Kan. at 646-47.

With that background, we turn to the rules of evidence. Generally speaking, a
prosecutor is prohibited from admitting evidence of prior sexual misconduct or prior
convictions—also known as propensity evidence—to show that the defendant has a
propensity to commit the charged crime. See K.S.A. 2018 Supp. 60-455(a); State v.
Prine, 297 Kan. 460, 475-76, 303 P.3d 662 (2013). But this rule is provided by statute,
and the Legislature adopted an exception applicable only in sex-crime prosecutions after
the Prine decision addressed the issue in 2013. Now, K.S.A. 2018 Supp. 60-455(d)
provides that the State may use "evidence of the defendant's commission of another act or
offense of sexual misconduct" when the defendant is charged with a sex offense and that
evidence "may be considered for its bearing on any matter to which it is relevant and
probative."

Here, the district court allowed the State to present evidence of Brunson's prior
sex-crime convictions for incest and for sodomizing an 11-year-old girl, along with
testimony that he had molested his sisters when they were children and made unwanted
sexual gestures towards them as adults. The State presented this as propensity evidence to
prove that Brunson was inclined to commit crimes similar to those for which he was on
trial.

Since the statute plainly authorizes the admission of propensity evidence in a case
like this one, Brunson must make one of two arguments to show error. He must either
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show that the statutory criteria for admission weren't met or that the statute itself is
unconstitutional. Brunson has made both arguments; here, we address constitutionality.

Brunson argues that admitting this evidence under K.S.A. 2018 Supp. 60-455(d)
violated his rights under sections 10 and 18 of the Kansas Constitution Bill of Rights.

Section 10 of the Kansas Constitution Bill of Rights provides basic rights to
defend oneself before an impartial jury:

"In all prosecutions, the accused shall be allowed to appear and defend in person,
or by counsel; to demand the nature and cause of the accusation against him; to meet the
witness face to face, and to have compulsory process to compel the attendance of the
witnesses in his behalf, and a speedy public trial by an impartial jury of the county or
district in which the offense is alleged to have been committed. No person shall be a
witness against himself, or be twice put in jeopardy for the same offense."

Section 18 of the Kansas Constitution Bill of Rights provides general due-process rights:
"All persons, for injuries suffered in person, reputation or property, shall have remedy by
due course of law."

To support his position, Brunson cites two out-of-state cases: (1) the Iowa
Supreme Court's decision in State v. Cox, 781 N.W.2d 757, 759, 768-69 (Iowa 2010),
where the court ruled that using propensity evidence in sex-crime cases violated the
defendant's due-process rights under the Iowa Constitution; and (2) the Missouri Supreme
Court's decision in State v. Ellison, 239 S.W.3d 603, 608 (Mo. 2007), in which the court
ruled that "[e]vidence of a defendant's prior criminal acts, when admitted purely to
demonstrate the defendant's criminal propensity, violates one of the constitutional
protections vital to the integrity of our criminal justice system."

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But in State v. Boysaw, 52 Kan. App. 2d 635, 648-49, 372 P.3d 1261 (2016), aff'd
309 Kan. 526, 439 P.3d 909 (2019), our court found K.S.A. 2015 Supp. 60-455(d)
constitutional, rejecting an argument based on Cox and Ellison. After Brunson and the
State had filed their briefs in this appeal, the Kansas Supreme Court affirmed our ruling
in Boysaw.

In its opinion, the Kansas Supreme Court first determined that K.S.A. 2018 Supp.
60-455(d) did not violate due process under the United States Constitution. That
conclusion was based in part on the court's finding that "K.S.A. 2018 Supp. 60-
455(d) does not offend any principle of justice so rooted in the traditions and conscience
of the people of this state that it may be deemed fundamental." Boysaw, 309 Kan. at 536.

After finding that K.S.A. 2018 Supp. 60-455(d) did not violate the federal
Constitution, the court then considered the defendant's argument that K.S.A. 2018 Supp.
60-455(d) violated the Kansas Constitution. The court first noted that Kansas courts have
historically "analyzed sections 10 and 18 as coextensive with their federal counterparts."
Boysaw, 309 Kan. at 537. Then the court instructed that "[a]ny future challenge to the
admission of propensity evidence under K.S.A. 2018 Supp. 60-455(d) that is based on
state constitutional provisions will need to explain why this court should depart from its
long history of coextensive analysis of rights under the two constitutions." 309 Kan. at
538.

While Brunson cites both state and federal cases in support of his argument, he
doesn't address why the Kansas Supreme Court should abandon its longstanding practice
of interpreting sections 10 and 18 of the Kansas Constitution Bill of Rights as
coextensive with their federal counterparts. Without such an argument—and considering
the Kansas Supreme Court's recent rejection of a challenge to K.S.A. 2018 Supp. 60-
455(d) in Boysaw—we reject Brunson's argument that K.S.A. 2018 Supp. 60-455(d)
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deprives him of the constitutional protections afforded in sections 10 and 18 of the
Kansas Constitution. See State v. Razzaq, 309 Kan. 544, 550, 439 P.3d 903 (2019).

We do recognize that the Kansas Supreme Court's opinion in Boysaw was released
after the briefs were filed in Brunson's appeal to our court. Even so, Brunson provides no
meaningful rationale for changing the longstanding practice of interpreting these Kansas
constitutional provisions as coextensive with their federal counterparts. That established
practice was well known before the briefs were filed here.

II. The District Court Didn't Abuse Its Discretion in Admitting Evidence of Brunson's
Prior Sex-Crime Convictions and Other Uncharged Sexual Offenses to Show Propensity.

As we have already noted, there was a second avenue available for Brunson to
challenge the admission of the propensity evidence. The statute has criteria under which
such evidence may be excluded; Brunson argues that the district court should have
excluded the evidence because its prejudicial effect outweighed its probative value. We
set out the evidence presented earlier in the opinion.

When determining whether to admit evidence, a district court has to decide
whether the evidence is relevant. As a general rule, all relevant evidence is
admissible. K.S.A. 60-407(f). Evidence is relevant if it has any tendency in reason to
prove any material fact. K.S.A. 60-401(b); State v. Page, 303 Kan. 548, 550, 363 P.3d
391 (2015). But even if evidence is relevant, a district court may exclude it if the court
finds the evidence's probative value is outweighed by its prejudicial effects. K.S.A. 2018
Supp. 60-445. This court reviews a district court's balancing of probative value against
undue prejudice for an abuse of discretion. State v. Perez, 306 Kan. 655, 670, 396 P.3d
78 (2017). A district court abuses its discretion when its decision is based on either an
error of fact or law, or when no reasonable person could agree with the court's decision.
State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).
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In Boysaw, 309 Kan. at 541, our Supreme Court said "[n]o set test exists for
weighing probative value against prejudicial effect." Still, the court relied on decisions
from the United States Court of Appeals for the Tenth Circuit to instruct that when a
district court evaluates the probative value of evidence of other crimes, it should consider
"how clearly the prior act was proved; how probative the evidence is of the material fact
sought to be proved; how seriously disputed the material fact is; and whether the
government can obtain any less prejudicial evidence." 309 Kan. at 541 (citing United
States v. Benally, 500 F.3d 1085, 1090-91 [10th Cir. 2007]). Other factors that may be
considered when evaluating the probative value of prior acts and convictions are
similarity, closeness in time, number of prior acts, intervening circumstances, and the
necessity of the evidence beyond what has already been offered at trial. See Benally, 500
F.3d at 1090-91 (cited with approval in Boysaw, 309 Kan. at 541).

Here, there's no dispute that Brunson committed the sex crimes for which he was
previously convicted; he admitted at his trial that he had committed those crimes. Brunson
did deny, though, that he ever wrote a letter in which he admitted to raping his sisters when
they were young. He also denied making inappropriate sexual comments towards E.B. as an
adult.

But even if we limit our consideration to his convictions, that evidence is
probative of the crimes involved in this case. The victim in Brunson's sodomy case was
11 years old—similar to A.M.'s and A.E.'s ages when Brunson abused them. And the
aggravated incest conviction showed Brunson's propensity to commit sexual acts toward
his family members.

It's worth noting that the victims of Brunson's prior convictions and the alleged
prior sexual misconduct were all girls, while the victims of the current crimes were boys.
But both A.T. and Brunson's girlfriend told the jury that Brunson was bisexual. So the
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evidence of his prior sexual misconduct was still probative because of the State's
evidence that he was attracted to both sexes.

Brunson argues that the evidence wasn't probative because the crimes underlying
his prior convictions happened in 1992 and 1993—about 20 years before these crimes
took place. He says that during those 20 years or so, he was released from prison and
reintegrated into society—both things he says are intervening factors that go against the
probative value of the evidence.

That may be so. But the similarities between Brunson's current and prior crimes
are too striking to disregard. In short, the evidence was highly probative in this case.

We turn next to the prejudicial effect from this evidence. When considering
prejudicial effect, the court should consider "the likelihood that such evidence will
contribute to an improperly based jury verdict; the extent to which such evidence may
distract the jury from the central issues of the trial; and how time consuming it will be to
prove the prior conduct." Boysaw, 309 Kan. at 541 (citing Benally, 500 F.3d at 1090-91).

Here, the district court correctly explained that the evidence at issue was
prejudicial toward Brunson. See State v. Garcia, 285 Kan. 1, 18, 169 P.3d 1069 (2007).
But despite the evidence being prejudicial, the court concluded that it wasn't more
prejudicial than it was probative. That's a reasonable conclusion here and thus not an
abuse of discretion. The similarities between Brunson's prior acts and current crimes are
strong. And considering the abundance of other evidence against Brunson, it's unlikely
that the court's decision to admit the evidence would have contributed to an improperly
based jury verdict. We conclude that a reasonable person could agree with the district
court that the prejudicial effect of the evidence did not outweigh its probative value. So
the district court did not abuse its discretion in admitting this evidence.

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III. The Prosecutor Didn't Err During Voir Dire and Opening Statements.

Brunson next argues that the prosecutor erred during voir dire and opening
statements. When analyzing claims of prosecutorial error, we first ask whether the
prosecutor's comments were improper and outside the wide latitude that the State has to
prove its case. If they were, we then ask whether the improper comments prejudiced the
jury against the defendant and denied the defendant a fair trial. State v. Sherman, 305
Kan. 88, 109, 378 P.3d 1060 (2016). "A defendant is denied a fair trial when a prosecutor
misstates the law and the facts are such that the jury could have been confused or misled
by the statement." State v. Robinson, 306 Kan. 431, 440, 394 P.3d 868 (2017); see State
v. Huddleston, 298 Kan. 941, 946, 318 P.3d 140 (2014).

Brunson first says the prosecutor erred during jury selection when she was
explaining to the jury members how they would be required to follow the law regardless
of whether they believed the law was right or wrong. During jury selection, the
prosecutor told the jury:

"Let's say you don't agree with what the law is. The example that I use quite often . . . is
possession of marijuana. In the State of Kansas possession of marijuana is still a crime,
but there are obviously a portion of the community that does not agree with that . . . . So
that type of example, if there is something like that where you don't believe some of the
elements that you are given that that should be a crime, but the judge is instructing you
that those elements are. And if you believe them beyond a reasonable doubt, you should
find the defendant guilty. If you don't believe a portion of those instructions, do you
believe you would not be able to be fair and impartial?" (Emphasis added.)


Brunson claims that the italicized language is the same as telling the jury that if it finds
that the State has proved all the elements of the crime beyond a reasonable doubt, it
"must" convict him and couldn't exercise its right of jury nullification.
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Jury nullification happens when a jury intentionally rejects evidence or refuses to
apply the law "either because [it] wants to send a message about some social issue that is
larger than the case itself or because the result dictated by law is contrary to the jury's
sense of justice, morality, or fairness." Black's Law Dictionary 989 (10th ed. 2014). In
State v. Naputi, 293 Kan. 55, Syl. ¶ 4, 260 P.3d 86 (2011), our Supreme Court rejected
the notion that a criminal jury should be instructed on its power of nullification. But in
State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014), the court held that the
district court improperly forbade the jury from exercising the nullification power.

Although Brunson acknowledges that the jury shouldn't be told that it has the right
to nullify a verdict, he says it was incorrect of the prosecutor to suggest that it didn't have
that right at all. This court addressed and rejected an argument similar to Brunson's in
State v. Cuellar, No. 112,535, 2016 WL 1614037, at *2 (Kan. App. 2016) (unpublished
opinion). In that case, the defendant argued that the prosecutor committed misconduct
when during jury selection he informed the jurors that "'[they] will have decisions to
make in this case, but one of those is not whether or not the law that will be applied here
is fair or reasonable.'" 2016 WL 1614037, at *2. The defendant argued that the
prosecutor's statement constituted a misstatement of the law and prevented the jury from
exercising its power of nullification. We rejected the defendant's argument:

"[I]t is clear that the prosecutor was simply explaining the jury's duty and ensuring that
any potential jurors be willing to fulfill that role. And as our Kansas cases and statutes
make clear that the jury's role is to decide questions of fact while accepting the rules of
law, the prosecutor did not misstate the law." 2016 WL 16147037, at *3.

The same rationale applies in this case. Here, the prosecutor was simply urging the
jurors to follow the law and telling them what they needed to do to fulfill their roles as
jurors. She didn't misstate the law, and she didn't tell the jury that it didn't have the option
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to exercise its power of nullification. She said jurors "should" find the defendant guilty
under her hypothetical, not that they must do so. As our court said in State v. Spalding,
No. 114,561, 2017 WL 1433513, at *7 (Kan. App. 2017) (unpublished opinion), rev.
denied 307 Kan. 993 (2017): "The prosecutor's statements to the jurors during jury
selection were proper statements of the law because although jurors have the power of
nullification, they nonetheless have a duty to follow the law as provided by the district
court." We conclude that the prosecutor did not err in her comments to the jury during
jury selection.

Next, Brunson claims the prosecutor erred at the beginning of the State's opening
statement when she told the jury it was a case about trust and stolen innocence:

"This is a case about the innocence that was stolen from two young boys by a
person they should have been able to trust. This is a case about a person who sexually
abused his two nephews over the course of two years, who made the decision to play the
role of judge, jury and executioner as far as making the choice for them that they would
not have the opportunity to pick who and when they wanted to have a sexual relationship
with. The person who is responsible for that, the person who did that is sitting behind me,
and that's Mr. Edward Brunson."

Brunson argues that this statement "appeal[ed] to the passions and prejudices of
the jury by suggesting that this case was about the 'innocence stolen from two young
boys'" and by "put[ting] the jury in the place of contemplating themselves as the avengers
of two innocent young children rather than as the neutral arbiters of fact." He also says
the prosecutor overstepped her bounds by analogizing Brunson to the victims' "'judge,
jury and executioner,'" thereby suggesting to the jury that the crimes Brunson was
charged with committing "were akin to murder . . . ."

Generally, a prosecutor's statements are permissible as long as they are confined to
the evidence and reasonable inferences that can be drawn from the evidence and aren't
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designed to inflame the passions and prejudices of the jury. State v. Akins, 298 Kan. 592,
601-02, 315 P.3d 868 (2014) (prosecutor may not reference facts not in evidence); State
v. Hall, 292 Kan. 841, 853, 257 P.3d 272 (2011) (prosecutor may not make statements
that inflame the passions or prejudices of the jury). Further, a prosecutor has a duty to
"ensure only competent evidence is submitted to the jury and avoid arguments that could
prejudice the jurors' minds, preventing them from deciding the case on the
evidence." State v. Martinez, 290 Kan. 992, 1015, 236 P.3d 481 (2010) (citing State v.
Ruff, 252 Kan. 625, 636, 847 P.2d 1258 [1993]).

Here, neither of the statements Brunson says amounted to prosecutorial error by
exceeding the limits of acceptable argument. First, the prosecutor's comments about the
victims' innocence was tied closely to the evidence presented against Brunson. A.M. was
between 10 and 11 years old when the abuse began, and the abuse the boys suffered at the
hands of Brunson was entirely against their will. Even if the prosecutor hadn't explicitly
referred to the victims' innocence, the evidence presented would have easily allowed the
jury to infer that A.E. and A.M. had been robbed of their innocence. Referring to the
boys' innocence didn't amount to prosecutorial error.

Second, when the prosecutor used the phrase "judge, jury, and executioner" in her
opening statement, she was talking about the power Brunson exercised over A.M. and
A.E. as far as the abuse went. She wasn't talking about murder; she was telling the jury
that Brunson acted unilaterally in deciding whether and what kind of relationship the
boys had with Brunson. Brunson also unilaterally decided what kind of abuse he would
subject the boys to, how often he subjected them to it, and he controlled them by making
them afraid of what would happen if they ever told anyone what Brunson had done. And
the State's evidence supports the inferences the prosecutor wished to encourage the jury
to draw by referring to the "judge, jury, and executioner." Thus, there was no error in
making this statement either.

18

But even if the prosecutor's statements did exceed the wide latitude afforded to her
during trial, we find that the outcome would've been the same. The evidence against
Brunson was strong; both victims testified in detail about the abuse that Brunson inflicted
upon them. Significantly, Brunson's ex-girlfriend told the jury that he had admitted to
committing the crimes before the boys ever told their mothers about what happened. And
E.B.'s and A.T.'s testimony demonstrated Brunson's predisposition to committing similar
crimes.

Considering the volume and weight of the evidence the State presented against
Brunson, even if the prosecutor's statements were improper, there's no reasonable
possibility that they contributed to the jury's verdict.

IV. The District Court Didn't Abuse Its Discretion by Imposing Three Consecutive Life
Sentences Without the Possibility of Parole.

Last, Brunson argues that the district court erred by imposing three consecutive
life sentences without the possibility of parole because that sentence is too harsh. We
review a district court's decision to impose sentences consecutively for an abuse of
discretion. State v. Ayers, 309 Kan. 162, 165, 432 P.3d 663 (2019). A court abuses its
discretion if its decision is based on an error of fact or law or if no reasonable person
would agree with the decision. Marshall, 303 Kan. at 445.

Here, the jury convicted Brunson of six counts of sex crimes against children.
Since he was an aggravated sex offender, he was subject to six life sentences without the
possibility of parole. See K.S.A. 2018 Supp. 21-6626(a) (aggravated habitual sex
offenders not eligible for the mandatory minimum term of 25 years in prison or parole).
Of the six sentences, the district court made three of the sentences consecutive to one
another, meaning that Brunson has three consecutive life sentences to serve and is not
eligible for parole on any of them.
19


Brunson argues that by imposing three consecutive life sentences without the
possibility of parole, "the district court showed its personal prejudice . . . ." He also said
that ordering his sentences to run consecutively "served no practical purpose other than to
make a general statement to the public, and particularly the victims in this case, of how
horrendous the district court viewed the crimes in this case."

But sentences serve legitimate purposes beyond mere incapacitation of the
defendant. In Ayers, the court noted that "[r]etribution is the oldest justification for
sentencing and an important aspect—it is 'a merited response to the actor's deed . . .
expressing moral reprobation of the actor for the wrong.'" 309 Kan. at 165. And the
Kansas Supreme Court has upheld sentences similar to Brunson's.

In Ayers, for example, the court affirmed "the district court's imposition of on-grid
sentences consecutive to Ayers' sentence of life imprisonment without the possibility of
parole." 309 Kan. at 166. The court said that the consecutive sentences—after a life-
without-parole sentence—fulfilled the retributive aspect of sentencing. See 309 Kan. at
165. The court also noted that it's common to sentence "defendants to terms of
imprisonment they are unlikely to serve." 309 Kan. at 166.

Brunson suggests that Ayers was wrongly decided but acknowledges that this
court is bound to follow Supreme Court precedent should it decide Ayers is sufficiently
on point to control the result here. See State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360
P.3d 467 (2015). We conclude that even if Ayers is sufficiently dissimilar on the facts
from Brunson's case to preclude his argument altogether, the sentencing court still did not
abuse its discretion here.

The sentences the district court imposed weren't based on an error of fact or law,
and a reasonable person could agree with the sentences. At sentencing, the district court
20

correctly noted that the crimes Brunson committed were "horrid" and "despicable." It also
discussed the long-term impact that the crimes had on A.E., A.M., and their family, as
well as how A.E. and A.M. had to testify in court about their experiences. With those
considerations in mind, along with the Kansas Supreme Court's rationale affirming the
sentences in Ayers, a reasonable person could agree with the district court that three
consecutive life sentences without parole were appropriate sentences for Brunson.

We affirm the district court's judgment.