State v. Jones

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 119,764

STATE OF KANSAS,
Appellee,

v.

TOMMY L. JONES,
Appellant.

SYLLABUS BY THE COURT

1.
A district court's decision to admit or exclude evidence under K.S.A. 2020 Supp.
60-455(d) is reviewed for abuse of discretion.

2.
A district court may exclude relevant evidence if it finds its probative value is
outweighed by its potential for producing undue prejudice.

3.
When a jury instruction omits an essential element of the crime charged without a
contemporaneous objection, the error is reviewed on appeal for clear error.

4.
Although the offenses proscribed by K.S.A. 2014 Supp. 21-5510(a)(1) and (a)(4)
are similar, the differences between them are not merely semantic in nature.

1
5.
Under existing Kansas statutory law, the State need not prove that a defendant
knows a child's age to sustain a conviction under K.S.A. 2014 Supp. 21-5510.

6.
As a general rule, issues not raised before the trial court will not be addressed for
the first time on appeal. Although there are exceptions to this rule, they are prudential.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 26, 2020.
Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed August 6, 2021.
Judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed in
part and reversed in part. Judgment of the district court is affirmed in part and reversed in part, the
sentence is vacated, and the case is remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs
for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

WILSON, J.: Following a jury trial, Tommy L. Jones was convicted of four counts
of sexual exploitation of a child under K.S.A. 2014 Supp. 21-5510; counts Two and Four,
describing the possession of illicit materials, were charged in the alternative to counts
One and Three, which described "promoting any performance"—although the jury
instructions for counts One and Three used different language to describe these offenses.
At sentencing, the district court found Jones to be an aggravated habitual sex offender
under K.S.A. 2014 Supp. 21-6626 and sentenced him to life in prison without the
possibility of parole, though it did not impose sentence on the two counts charged in the

2
alternative. On appeal, a panel of the Court of Appeals reversed two of Jones' convictions
on the basis that they were charged in the alternative. The panel also determined that
Jones should have been sentenced as a persistent sex offender under K.S.A. 2014 Supp.
21-6804(j); otherwise, the panel affirmed Jones' convictions.

Both Jones and the State of Kansas petitioned this court for review. We accepted
review on all issues. Jones alleges: (1) district court error in permitting evidence of prior
convictions; (2) jury instructional errors; (3) unconstitutional statutory basis for
conviction; and (4) sentencing error. The State alleges: (1) panel error in reversing the
alternative convictions and (2) sentencing error. While we find no error in the district
court's decision to permit testimony regarding Jones' prior convictions, we conclude that
the asserted errors in the language of the jury instructions pertaining to Jones' convictions
in counts One and Three were not harmless. Accordingly, we reverse those convictions.
We also reverse the Court of Appeals' decision to reverse Jones' convictions under counts
Two and Four, and—because we have reversed Jones' primary offense of conviction—
vacate Jones' remaining sentences and remand the matter for further proceedings not
inconsistent with this opinion, including resentencing on counts Two and Four.

FACTS AND PROCEDURAL BACKGROUND

Underlying Facts

In October of 2014, 16-year-old A.C. met Jones through the online game World of
Warcraft while playing as her character "Grievance." A.C., who lived with her mother in
Pennsylvania, initially told Jones that she was a 19-year-old male. The two began to talk
regularly through the game, speaking for hours each day. After a few weeks, A.C.
revealed to Jones that she was female, though she still represented that she was 18 years
old.

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 Eventually, A.C.'s conversations with Jones became sexual. Jones claimed A.C.
initiated the virtual sex "and that he never saw her engaged in sexual activity." He said
both parties sometimes masturbated off-camera. During one such "sexual" conversation
over Skype on November 3, 2014, Jones asked A.C. to send him "sexy photos" and to
call him. Among other things, Jones wrote:

"[A.C.] I'm goof ball right now..but I mean what i say. i do want you and you are
so fucking amazing and beautiful. I'm also scared as fuck. I could get in so much trouble
hahahahahah. In a way you are so worth the risk."

About a minute later, A.C. transmitted two photographs. Jones replied to these
photographs by sending A.C. messages such as "oh yaya," "OMFG," and "COME GIVE
IT TO ME!!!!" However, Jones never explicitly mentioned nude photographs in this
conversation.

A few hours later, Jones and A.C. again spoke via Skype. This time, A.C. told
Jones that she had been born in 1998. In response, Jones said, "lol u 16," to which A.C.
replied, "2 months to be 17." Jones also later remarked, "Oh my god I can't believe I like
a 16 year old," and, "I'm crazy."

Jones and A.C. also discussed their lives. A.C. expressed general frustration with
her mother's control over her life, while, in several conversations, Jones encouraged A.C.
to come live with him in Kansas. At one point, Jones encouraged A.C. to delete all
information regarding their correspondence from her computer. A few days after learning
A.C. was 16 years old, Jones and A.C. discussed practical arrangements to enable A.C. to
travel to Kansas to be with Jones; during this conversation, Jones wrote, "since your [sic]
16, does that mean you have a joint account with your mom?"

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 Not long after this conversation, A.C. attempted to board a bus to travel to Kansas.
She was ultimately prevented from traveling to Kansas, however, and police brought
A.C. back to her mother—who had quarreled with A.C. earlier that day, after learning
that A.C. had attempted to purchase a bus ticket and a $250 Wal-Mart gift card—in the
middle of the night. A.C.'s mother then checked A.C. into an emergency room. Based on
A.C.'s disclosures, the hospital informed her mother that A.C. should go to a crisis
intervention center. Her mother then called the FBI.

Based on what they learned from A.C., law enforcement soon focused an
investigation on Jones. The FBI contacted Jones' parole officer at Kansas Department of
Corrections, Ed Desir, who was supervising Jones for his prior convictions of rape and
aggravated indecent liberties with a 12 or 13 year old child. Desir then called Jones, who
came in for an interview on the following morning, November 18, 2014. There, Jones
acknowledged that he had been in contact with A.C. Jones also informed Desir that his
laptop had been stolen on November 14, which he had reported to the police.

Undeterred, Desir asked Jones for his cell phone. Jones surrendered the phone to
Desir, who briefly searched it. On Jones' Facebook Messenger account, Desir observed
several messages from A.C. Based on these, Desir suspected that the phone would require
further examination by law enforcement; he confiscated it and gave it to City of Wichita
Detective Jennifer Wright on the following day, November 19.

After Jones' phone was put into "airplane mode" to block any external
communications, the contents of the phone were downloaded and analyzed by a forensic
investigator with the Sedgwick County Sheriff's Department. The investigator then
produced a report documenting numerous conversations between Jones' Skype account
and other individuals, including two different usernames belonging to A.C. In a folder on
Jones' phone that bore A.C.'s first name, investigators found three nude photographs of

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A.C. No one had attempted to delete these images; instead, someone had taken the action
to move the photographs into this folder, as Skype would not have stored them
automatically in a file named after A.C. Based on the filenames, these images appeared to
be copies of the files sent to Jones by A.C. during a Skype conversation on November 3.
Two of these photographs, which became the State's Exhibits 2A and 2C at trial,
portrayed A.C. "holding her breasts" and "touching the vaginal area," respectively.

Jones acknowledged to investigators that he had spoken to A.C. over Skype. He
also identified both his own Skype username and the two usernames A.C. employed.
Jones told Detective Wright that he thought A.C. was 18 years old; when Wright told him
otherwise, Jones "acted like that was the first time that he had heard that." Jones admitted
to investigators that he and A.C. had engaged in sexual conversations together over
Skype.

Jones' Trial Testimony

Jones testified at his trial. While he admitted to participating in sexual
conversations with A.C., he claimed to have never seen the above-referenced
conversation on November 3—including the photographs sent by A.C.—before trial.
Jones claimed that he left his Skype account logged in to every device in his residence,
and that anyone could have accessed it. According to Jones, A.C. only told him she was
17 years old on the evening of November 7, 2014; in this version, when A.C. told him
she was 17, he told her that he would rather she wait until she was 18 before attempting
to visit him in Kansas "because [he] was not allowed to have contact with minors."

According to Jones, A.C. mostly initiated conversations about sex. Jones denied
procuring the three photos of A.C. found on his phone and denied any knowledge of how
those photos ended up on his phone. Jones further denied ever asking A.C. to send him

6
nude photos of herself, denied asking A.C. to ever do anything sexual while they were
talking, and denied engaging in any sexual activities himself while she was watching
him. Jones claimed he could not remember if he ever asked A.C. to come to Kansas, but
he believed they had a "mutual agreement about getting married." Jones claimed that, at
the time they made this agreement, he thought A.C. was 18 years old.

District Court Proceedings

In a Second Amended Information, the State ultimately charged Jones with four
counts of sexual exploitation of a child, based on the photographs contained in the State's
exhibits. Counts One and Three charged Jones with promoting any performance that
includes sexually explicit conduct by a child under 18 years of age knowing the character
and content of the performance, under K.S.A. 2014 Supp. 21-5510(a)(4). Counts Two
and Four charged Jones—in the alternative—with possessing any visual depiction of a
child under 18 years of age engaging in sexually explicit conduct, under K.S.A. 2014
Supp. 21-5510(a)(2). Although the jury verdict forms did describe each count as
"alternative," the jury returned guilty verdicts on all counts. The district court accepted
the verdicts and found Jones guilty of all charges.

At sentencing, the district court concluded that Jones qualified as an aggravated
habitual sex offender under K.S.A. 2014 Supp. 21-6626 and sentenced him to life in
prison without the possibility of parole on all four counts. The district court only imposed
this sentence for Counts One and Three, which it ran concurrent; the court did not impose
the pronounced life sentences for the alternative counts, Two and Four.

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Appellate Proceedings

Jones appealed. A panel of the Court of Appeals affirmed Jones' convictions for
counts One and Three, reversed his convictions for counts Two and Four on the basis that
the district court lacked authority to enter convictions on the alternatively charged counts,
and concluded that Jones should have been sentenced as a persistent sex offender under
K.S.A. 2014 Supp. 21-6804(j)(2)(A), rather than as an aggravated habitual sex offender
under K.S.A. 2014 Supp. 21-6626. State v. Jones, No. 119,764, 2020 WL 3481527, at *6-
7, *15 (Kan. App. 2020) (unpublished opinion). Jones and the State both petitioned this
court for review, raising the six issues set forth above.

ANALYSIS

The district court did not abuse its discretion in permitting the State to present evidence
of Jones' prior convictions.

Jones first challenges the district court's decision to permit the State to present
evidence that Jones had been previously convicted of rape and aggravated indecent
liberties.

Standard of Review

Under K.S.A. 2020 Supp. 60-455(d), subject to certain exclusions, "evidence of
the defendant's commission of another act or offense of sexual misconduct is admissible,
and may be considered for its bearing on any matter to which it is relevant and
probative." As we have previously established:

"The admission of evidence involves several legal considerations: determining
relevance; identifying and applying legal principles including rules of evidence; and

8
 weighing prejudice against probative value. We apply various standards of review during
this process. First, we consider whether the evidence is relevant. All relevant evidence is
admissible unless it is prohibited by statute, constitutional provision, or judicial
precedent. K.S.A. 60-401(b) defines relevant evidence as 'evidence having any tendency
in reason to prove any material fact.'

"Relevance has two elements: materiality and probativeness. Evidence is
material when the fact it supports is in dispute or in issue in the case, and our standard of
review for materiality is de novo. Evidence is probative if it has any tendency to prove
any material fact, and we review a lower court's decision that evidence is probative for
abuse of discretion. A judicial action constitutes an abuse of discretion if (1) it is
arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on
an error of fact. A district court may still exclude relevant evidence if it finds its
probative value is outweighed by its potential for producing undue prejudice. [Citations
omitted.]" State v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021).

Discussion

Additional Facts

The State filed a pre-trial Motion for Admission of Evidence Pursuant to K.S.A.
60-455(d) on November 9, 2016. The district court considered the State's motion in a
hearing before trial. At this hearing, the prosecutor proffered that Jones' 2008 convictions
for rape and aggravated indecent liberties—with a victim who was either 12 or 13 years
of age—were obtained following a trial on stipulated facts. The prosecutor further
proffered that the facts underlying these previous convictions arose from what Jones
supposedly characterized as a "consensual encounter," i.e., not an "overcome by force or
fear sort of rape." But the prosecutor suggested that the State would only introduce this
evidence by calling Jones' parole officer, who would testify that he was supervising Jones
for these prior crimes with a child under 14 years of age. The prosecutor argued that these
convictions were probative as to Jones' knowledge that A.C. was not 16 years old based

9
on Jones' expressions of awareness that he could get in trouble from his contact with A.C.
The defense, in turn, argued that nothing about the prior convictions was relevant.

In evaluating the parties' arguments, the district court referenced the factors set
forth in State v. Prine, 297 Kan. 460, 303 P.3d 662 (2013), including (1) how clearly the
prior act has been proved, (2) how probative the evidence is of the material fact that is
being admitted to prove, and (3) how seriously disputed the material fact is, and whether
the government has any less prejudicial evidence it can avail itself. The court
acknowledged that "the cards are sort of stacked against the defendant in these kinds of
situations." The court then set forth its analysis:

"I do think the Court has to look at this very carefully because the fact they are not the
same crime and, you know, in looking at those four factors that are cited in Prine 2 at
page 674 of the State's brief, which comes from the federal rules, and in looking at the
other direction . . . . State v. Garcia, which talks about evidence that actually or probably
brings about the wrong results under circumstances of the case is unduly prejudicial. And
even in Garcia I think it is clear that . . . prior crimes of this nature, are almost always
going to be prejudicial, and I can't think of a situation where they are not going to be
prejudicial. And Garcia talks about . . . evidence being derogatory. It is—I don't know
that there is a cleaner way, if you will, to present it to the jury than what the State is
proposing.

"And so really the ultimate question is does this material relate to a disputed fact
or facts and it appears to me that it does. And does it go to the defendant's propensity to
commit the crimes he's charged with in this case, and the reality of it is we're talking
about two cases with underaged . . . females, and I think under . . . that statute that it is, as
the State . . . has proposed, is allowed . . . .

"The statute does appear to me to fit and it does go to facts that are clearly
disputed between the parties, and, therefore, based upon the case law and the direction I
will allow the State to present the evidence in the trimmed down version that they have
suggested and allow that information to go to the jury."

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 Merits

Jones argues the district court allowed the admission of his prior convictions
simply because K.S.A. 2020 Supp. 60-455(d) permitted it, without "adequately"
weighing its prejudicial effect against its probative value. The Court of Appeals rejected
this argument. It acknowledged its assumption that "the balancing test is required even
for 60-455(d) evidence," but concluded, from the nature of the district court's comments,
that it had applied the balancing test. 2020 WL 3481527, at *3-4. The panel also rejected
Jones' argument that the district court failed to conduct any balancing test for insufficient
briefing. 2020 WL 3481527, at *3.

We agree with the panel's reasoning. Although the district court lacked the benefit
of the case cited by the panel—State v. Boysaw, 309 Kan. 526, 439 P.3d 909 (2019)—or
the case cited above—Levy—it nevertheless referenced several of the factors underlying
the balancing test described in those cases. See Boysaw, 309 Kan. at 541. The district
court noted that the State's method of proving Jones' prior convictions was the most
"clean[]" way to do so, implying both an attempt to minimize the time it would take to
establish these convictions and the emphasis placed on them. Nor do we read the district
court's discussion of the prior convictions' relevance as an indication that the court
assumed this evidence was admissible no matter what, as Jones argues. Instead, the
district court weighed the probative value of the convictions against their unquestionably
prejudicial impact. Regardless of whether Jones' knowledge of A.C.'s age was an element
of the crime (which Jones also challenges in a separate issue), part of Jones' trial strategy
was to suggest that he was not the individual who asked A.C. to send "sexy" photographs
of herself. Jones' propensity to engage in relationships with teenage (if not necessarily
younger-than-age-18) girls was relevant to this issue, as the district court reasoned.

11
Consequently, the district court applied the correct balancing test and reached a
reasonable conclusion. We find no error in its decision.

The jury instructions with respect to counts One and Three were clearly erroneous based
on their omission of an element of the charged crimes.

Jones next argues that the district court lacked authority to convict him of the
crimes charged in counts One and Three because the jury instructions used different
language than the charging document. Jones argues that these convictions—which he
claims arose under K.S.A. 2014 Supp. 21-5510(a)(1), even though the district court's
journal entry recorded them as arising under (a)(4)—violated his right to have a jury
determine every element charged under the Sixth and Fourteenth Amendments, as
recognized by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).

Standard of Review

Before addressing Jones' argument, we must first consider the framework under
which to view it. Jones couches his argument in the language of a challenge to the district
court's authority to enter a conviction "because the jury did not determine that [Jones]
committed (a)(4) crimes," rather than as a challenge to the jury instructions themselves.
We are unpersuaded that this framing entitles him to a different standard of review from a
normal challenge to jury instructions, however. Indeed, the case he cites for the premise
that a complaint's wording is binding on the State—State v. Trautloff, 289 Kan. 793, 802-
03, 217 P.3d 15 (2009)—itself addressed erroneous jury instructions, not the district
court's absence of authority to enter a conviction founded upon erroneous instructions.

Instead, we agree with the Court of Appeals' decision to assess this issue as a
question of jury instruction error. Jones, 2020 WL 3481527, at *7-8. Ordinarily, when

12
presented with a claim that a district court has erred in issuing or refusing to issue a jury
instruction:

"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction
was legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in [State v. ]Ward[, 292 Kan. 541, 565, 256 P.3d 801
(2011)]." State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).

"The first element of this analysis ultimately affects the last one 'in that whether a
party has preserved an issue for review will have an impact on the standard by which we
determine whether an error is reversible.'" State v. Ross, 310 Kan. 216, 223, 445 P.3d 726
(2019) (quoting State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 [2015]). If, as here, a
defendant does not object to a district court's jury instructions, an appellate court:

"appl[ies] the clear error standard mandated by K.S.A. 2017 Supp. 22-3414(3). Under
that standard, an appellate court assesses whether it is 'firmly convinced that the jury
would have reached a different verdict had the instruction error not occurred.' [The
defendant] has the burden to establish reversibility, and in examining whether he has met
that burden we make a de novo determination based on the entire record. [Citations
omitted.]" State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018).

But our review is complicated by the fact that, here, the claimed legal error
resulted in the total omission of an essential element of the charged crime. As we have
recognized:

13
 "A jury is vested with the duty to determine whether a defendant is guilty or not guilty of
each charged crime; and in fulfilling that duty, it must apply the law to the facts as it
finds them. Therefore, the failure to properly instruct a jury on the essential elements of
the crime charged typically prevents the jury from rendering a proper verdict. Moreover,
a defendant's right to have the jury properly instructed on all essential elements of the
charged crime is rooted in the Sixth Amendment to the United States Constitution, which
guarantees a defendant's right to trial by jury. [Citations omitted.]" State v. Brown, 298
Kan. 1040, 1045, 318 P.3d 1005 (2014).

In the absence of a contemporaneous objection, the failure to include an essential element
of the crime in jury instructions is still reviewed for clear error. 298 Kan. at 1048 (citing
State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 [2012]). "In other words, where the
appellate record convinces the appellate court that the jury would have found the
essential element if it had been asked to do so, the failure to obtain the jury's finding is
harmless error." Brown, 298 Kan. at 1049 (discussing State v. Reyna, 290 Kan. 666, 234
P.3d 761 [2010], overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d
332 [2016]). See also State v. Daniels, 278 Kan. 53, 58-63, 91 P.3d 1147 (2004)
(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, 119 S. Ct.
1827, 144 L. Ed. 2d 35 [1999]: "[W]here a reviewing court concludes beyond a
reasonable doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been the same absent the
error, the erroneous instruction is properly found to be harmless."). Stated another way,
"The error is harmless if the appellate court has a firm belief beyond a reasonable doubt
that the error had little, if any, likelihood of changing the result of the trial." State v.
Jarmon, 308 Kan. 241, 244, 419 P.3d 591 (2018) (further describing the standard of
review as "relaxed because Jarmon did not object to the instructions").

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 Discussion

K.S.A. 2014 Supp. 21-5510 provides, in part:

"(a) Sexual exploitation of a child is:

(1) Employing, using, persuading, inducing, enticing or coercing a child under 18 years of age, or
a person whom the offender believes to be a child under 18 years of age, to engage in sexually explicit
conduct with the intent to promote any performance;

....

(4) promoting any performance that includes sexually explicit conduct by a child under 18 years
of age, or a person whom the offender believes to be a child under 18 years of age, knowing the character
and content of the performance.

....

"(d) As used in this section:

....

(2) 'promoting' means procuring, transmitting, distributing, circulating, presenting, producing,
directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising:

(A) For pecuniary profit; or

(B) with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the
offender or any other person."

In counts One and Three, Jones was charged with violating K.S.A. 2014 Supp. 21-
5510(a)(4) based on the act of "promot[ing] any performance that includes sexually

15
explicit conduct by a child under eighteen (18) years of age . . . knowing the character
and content of the performance." In contrast, the jury instructions tracked the language of
K.S.A. 2014 Supp. 21-5510(a)(1) by advising the jury that the State had to prove Jones
persuaded, induced, or enticed the child victim to engage in sexually explicit conduct
"with the intent to promote a performance."

The State concedes that the jury instructions were legally erroneous, as the Court
of Appeals concluded. We agree. But the State also argues that the instruction was not
clearly erroneous based on the strength of the evidence of Jones' guilt. The Court of
Appeals agreed with this approach, writing, "Had the district court properly instructed the
jury, we are convinced beyond a reasonable doubt that Jones would have been
convicted." Jones, 2020 WL 3481527, at *9. We disagree.

First, while we appreciate the Court of Appeals' observation that the distinction
between a violation of K.S.A. 2014 Supp. 21-5510(a)(1) and a violation of (a)(4) "would
likely be lost on the jury," the differences between the subsections are not mere
semantics. 2020 WL 3481527, at *9. To convict Jones of a violation under (a)(4), the jury
had to determine that Jones promoted, i.e., procured "any performance that includes
sexually explicit conduct by a child under 18 years of age, . . . knowing the character and
content of the performance." In contrast, the jury actually convicted Jones of persuading
A.C. "to engage in sexually explicit conduct with the intent to promote any performance."
K.S.A. 2014 Supp. 21-5510(a)(1). In other words, the jury was instructed that it had to
consider whether, beyond a reasonable doubt, the evidence supported a finding that Jones
(1) persuaded, (2) a child under 18 years of age, (3) to engage in sexually explicit
conduct, and (4) with the intent to promote any performance. As charged, however,
Jones' actual crime required a finding that Jones (1) promoted or procured, (2) any
performance, (3) that includes sexually explicit conduct, (4) by a child under 18 years of
age, and (5) knew the content and character of the performance.

16
 Second, the evidence that Jones committed violations under both K.S.A. 2014
Supp. 21-5510 (a)(1) and (a)(4) is not so strong as to provide us with "a firm belief
beyond a reasonable doubt that the error had little, if any, likelihood of changing the
result of the trial." Jarmon, 308 Kan. at 244. Jones asked A.C. to send "sexy pictures"
during their "sexual" conversation of November 3. Had the jury been properly instructed,
it could have inferred this demonstrated knowledge of the content and character of the
requested performance—being the nude pictures A.C. later sent to Jones. However, given
the error, the evidence is less than overwhelming.

Critically, the strongest direct evidence that Jones knew what he was asking for
lies in his use of the adjective "sexy." Without putting too fine a point on it, materials
which could be viewed as "sexy" do not necessarily meet the statutory definition of
"sexually explicit conduct." "Sexy" could mean an expressive facial expression or a
suggestive pose of a fully clothed person. The meaning of "sexually explicit conduct" is
specifically defined by K.S.A. 2014 Supp. 21-5510(d)(1) as "actual or simulated:
Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-
genital, anal-genital or oral-anal contact, whether between persons of the same or
opposite sex; masturbation; sado-masochistic abuse with the intent of sexual stimulation;
or lewd exhibition of the genitals, female breasts or pubic area of any person." 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.

Consequently, we find the jury instructions given with respect to counts One and
Three to be clearly erroneous and reverse Jones' convictions for those counts. This
decision also controls our analysis of the State's claim that the panel erred in reversing
two of Jones' alternatively charged convictions for counts Two and Four. Without

17
addressing the merits of the panel's decision on this point, we find that the basis upon
which the panel reversed Jones' convictions for counts Two and Four no longer exists.
Consequently, we reverse the panel's decision to reverse Jones' convictions for counts
Two and Four.

Additionally, because the district court considered count One to be the primary
offense, our reversal of Jones' conviction for count One requires us to remand the matter
for resentencing upon Jones' remaining convictions in counts Two and Four. K.S.A. 2020
Supp. 21-6819(b)(5). Thus, we reverse Jones' convictions for counts One and Three,
reverse the panel's decision to reverse Jones' convictions for counts Two and Four, vacate
Jones' sentences for all four counts, and remand the matter to the district court for further
proceedings not inconsistent with this opinion—including resentencing for counts Two
and Four under K.S.A. 2020 Supp. 21-6819(b)(5) and, potentially, retrial on counts One
and Three.

The jury instructions' comment that the State need not prove Jones knew A.C.'s age was
legally appropriate under existing Kansas statutes. Additionally, Jones failed to preserve
his First Amendment challenge to K.S.A. 2014 Supp. 21-5510 for appellate review.

Jones' next issue is bifurcated. He first argues the jury instructions were clearly
erroneous because they informed the jury that, "The State need not prove the defendant
knew the child's age." He argues this instruction represents an incorrect statement of the
law. Second, Jones argues that, if the jury instructions correctly stated that the
prosecution was not required to prove Jones knew A.C.'s age, then the statute itself was
facially unconstitutional based on its overbreadth, in violation of the First Amendment.
Jones did not object to the jury instructions or raise this constitutional issue at trial.

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 Standard of Review

We have already set forth our standard of review as to claims of jury instruction
error. As to Jones' constitutional challenge:

"We review the constitutionality of a statute as a question of law and apply a de novo
standard of review. The constitutionality of a statute is presumed, and all doubts must be
resolved in favor of the validity of the statute. Before the statute may be stricken, it must
clearly appear to violate the constitution. This court must construe the statute as
constitutionally valid if there is any reasonable way to do so. [Citations omitted.]" Tolen
v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008).

A facial challenge to the constitutionality of legislation is "the most difficult
challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." United States v. Salerno, 481
U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697 (1987). Moreover, "[t]he fact that
the [challenged legislation] might operate unconstitutionally under some conceivable set
of circumstances is insufficient to render it wholly invalid, since we have not recognized
an 'overbreadth' doctrine outside the limited context of the First Amendment." 481 U.S. at
745. See State v. Watson, 273 Kan. 426, 435, 44 P.3d 357 (2002). Additionally, within
the context of First Amendment "overbreadth" challenges,

"Where conduct and not merely speech is involved, the United States Supreme Court
requires that 'the overbreadth of a statute must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep.' This court has divided this
burden into a two-part test. The party attacking the constitutionality of a statute on the
basis of overbreadth must establish '(1) the protected activity is a significant part of the
law's target, and (2) there exists no satisfactory method of severing that law's
constitutional from its unconstitutional applications.' [Citations omitted.]" State v.
Williams, 299 Kan. 911, 920, 329 P.3d 400 (2014).

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 Discussion

Jury Instructions

Jones first argues that the jury instructions were legally inappropriate based on
their assertion that the State need not prove Jones knew A.C.'s age. We disagree.

The challenged jury instructions were modeled after PIK Crim. 4th 55.180. As
authority for the challenged portions of the instructions, PIK cites K.S.A. 21-5204(b):
"Proof of a culpable mental state does not require proof: . . . (b) that the accused had
knowledge of the age of a minor, even though age is a material element of the crime with
which the accused is charged." Cf. State v. Fore, 17 Kan. App. 2d 703, 705, 843 P.2d 292
(1992) (predecessor to K.S.A. 21-5204 "expressly bars lack of knowledge about a minor's
age as a defense to the crimes charged"). Consequently, we conclude that the instructions
accurately captured Kansas law as written.

First Amendment Overbreadth Challenge

As a fallback, Jones argues that, if the jury instructions accurately stated Kansas
law as written, then the law is nevertheless unconstitutionally overbroad, in violation of
the First Amendment. Jones relies primarily on United States v. X-Citement Video, Inc.,
513 U.S. 64, 72-73, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994), to support this argument.

But Jones did not raise his constitutional challenge to K.S.A. 2014 Supp. 21-5510
at trial. He asked the Court of Appeals to address this issue for the first time on appeal
based on (1) the purely legal character of the issue, and (2) the need to consider the issue
to prevent a denial of fundamental rights. Both are recognized exceptions to the general
rule. See, e.g., State v. Vonachen, 312 Kan. 451, 457, 476 P.3d 774 (2020). Theoretically,

20
both exceptions could apply. See, e.g., U.S.D. No. 503 v. McKinney, 236 Kan. 224, 234,
689 P.2d 860 (1984) (recognizing freedom of speech as "among the most fundamental
personal rights and liberties of the people"). But see United States v. Henson, 705 Fed.
Appx. 348, 356 (6th Cir. 2017) (unpublished opinion) ("there is no fundamental right to
possess child pornography"). Nevertheless, both exceptions are prudential, which
appellate courts can apply in their discretion. See, e.g., State v. Gross, 308 Kan. 1, 6, 417
P.3d 1049 (2018).

The Court of Appeals refused to consider the matter for the first time on appeal,
citing State v. Zabrinas, 271 Kan. 422, 427, 24 P.3d 77 (2001). Jones, 2020 WL
3481527, at *10. There, the court refused to address a challenge to the constitutionality of
K.S.A. 21-3516 (the predecessor of K.S.A. 21-5510) based on the absence of a scienter
requirement. Zabrinas, 271 Kan. at 427. As the court wrote:

"Had the scienter argument been raised below, the jury might have been more
specifically instructed. However, the instructions given are clearly sufficient and required
a finding that the defendant's conduct was intentional, which was defined as 'willful and
purposeful and not accidental.' One of the stated exceptions to our rule that '[a]n issue not
presented to the trial court will not be considered for the first time on appeal,' is that such
a question should be considered if necessary to serve the ends of justice or prevent denial
of fundamental rights. Based on the clearly pornographic nature of all of the material
viewed, the consideration of the scienter contention is not necessary here, and we limit
our discussion to the overbreadth issue. [Citations omitted.]" 271 Kan. at 427.

Later, the Zabrinas court also noted the "uncontroverted" testimony estimating
that the children depicted were all "substantially under the age of 16 years," which
"would be known to any viewer." 271 Kan. at 432-33. While this aspect of Zabrinas is
distinguishable from Jones' case, we nevertheless find the Court of Appeals did not abuse
its discretion by declining to consider Jones' First Amendment claim for the first time on
appeal.

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 Although we agree with the panel's decision, we depart from its conclusion
that part of Jones' argument was "waived or abandoned" under Supreme Court
Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35) because Jones did "not explain why this
issue was not raised at the district court level and why we should consider it for
the first time on appeal." Jones, 2020 WL 3481527, at *9. Although Jones did not
explain why the argument was not raised below, his amended brief before the
Court of Appeals represented that, "Although trial counsel did not challenge the
constitutionality of the statute below, this Court may consider the claim as, (1) a
question of law arising on proved or admitted facts that is determinative of the
case, and (2) necessary to prevent a denial of fundamental rights." Later, in a reply
brief, Jones devoted several pages of argument to this issue, including an attempt
to distinguish Zabrinas. Consequently, Jones' appellate briefing did not fall afoul
of Rule 6.02(a)(5), and we disagree with the panel's conclusion that his argument
was waived or abandoned. Regardless, we reiterate that the panel did not abuse its
discretion in refusing to consider this issue.

We do not address the parties' remaining arguments.

The parties present three final issues. We have already noted the State's challenge
to the panel's decision to reverse Jones' alternatively charged convictions. As we have
indicated, we decline to reach the merits of this issue because the panel's basis for
reversing Jones' convictions for counts Two and Four no longer exists, i.e., there are
currently no alternatively charged convictions to counts Two and Four. Moreover, as we
cannot determine whether the State will retry Jones on the two counts reversed above,
any discussion of the proper remedy for alternatively charged convictions would be
entirely speculative at this point. Cf. Sierra Club v. Mosier, 305 Kan. 1090, 1130, 391
P.3d 667 (2017) (describing an argument as "currently moot under existing law and not

22
ripe pending speculation regarding the resolution of the other litigation"). We thus leave
this question for another day.

The final two issues both pertain to the question of Jones' sentences. Specifically,
the State contends that the Court of Appeals panel erred in vacating Jones' sentences
under the aggravated habitual sex offender statute, K.S.A. 2014 Supp. 21-6626(c), on
the basis that the rule of lenity required Jones to be sentenced as a persistent sex
offender under K.S.A. 2014 Supp. 21-6804(j). Jones also takes issue with a related
aspect of the panel's decision, claiming the panel erred in rejecting his contention that,
because the State did not mention prior "sexually violent" crimes in the charging
document to put him on notice that he could be sentenced as either a persistent or an
aggravated habitual sex offender, the district court could only sentence him to the terms
of imprisonment authorized for level 5 felony offenses.

Because we have reversed Jones' convictions in counts One and Three, reversed
the panel's decision to reverse Jones' convictions in counts Two and Four, and remanded
the case to the district court for further proceedings—including resentencing Jones, as
required by K.S.A. 2020 Supp. 21-6819(b)(5)—we also find both arguments to be moot
in part and unripe in part, as the circumstances underpinning the parties' arguments have
been swept away, and it is beyond our power to guess whether—and when—they may
emerge again. Nor do we find the possibility that the district court will resentence Jones
as a persistent sex offender for counts Two and Four, rather than an aggravated habitual
sex offender, to render the issue sufficiently definite to merit our consideration at the
present. Cf. State v. Montgomery, 295 Kan. 837, 841, 286 P.3d 866 (2012) (noting
exception to mootness doctrine for issues capable of repetition); State ex rel. Morrison v.
Sebelius, 285 Kan. 875, 896, 179 P.3d 366 (2008) (to be ripe, issues must have "taken
fixed and final shape rather than remaining nebulous and contingent"). Consequently, we
do not reach the parties' final three arguments.

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 CONCLUSION

Jones' convictions for sexual exploitation of a child under counts One and Three of
the Second Amended Information are reversed due to clearly erroneous jury instructions,
and his sentences for those convictions are vacated. We further reverse the Court of
Appeals' decision to reverse Jones' convictions under counts Two and Four, vacate the
district court's sentences for those counts pursuant to K.S.A. 2020 Supp. 21-6819(b)(5),
and remand the matter for further proceedings not inconsistent with this opinion.

Judgment of the Court of Appeals affirming in part and reversing in part the
district court is affirmed in part and reversed in part. Judgment of the district court is
affirmed in part and reversed in part, the sentence is vacated, and the case is remanded
with directions.

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