Statutory Differences Not Mere Semantics in Jury Instructions

Author: Lexi Christopher, Staff Editor

State v. Jones, No. 119,764, (Kan. August 6, 2021)

Issue: Jones was convicted of four counts of sexual exploitation of a minor under Kan. Stat. Ann. § 21-5510.  Were the jury instructions clearly erroneous when they used different language than the charging document, resulting in an omission of an essential element of the charged crime?

Answer: Yes.  Failure to properly instruct a jury on the essential elements of the crime charged prevents the jury from rendering a proper verdict.  A harmless error occurs when the reviewing court believes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.  Here, the error was not harmless.

Facts: Jones met and developed an online relationship with a 16-year-old minor and asked her to send him “sexy” photos.  He was investigated for this relationship and charged with four counts of sexual exploitation of a minor based on nude photographs found on his cell phone by his parole officer.

Discussion: In counts one and three of the charging document, Jones was charged with violating Kan. Stat. Ann. § 21-5510(a)(4) based on the act of promoting any performance of sexually explicit conduct by a minor, knowing the character and content of the performance.  However, the jury instructions more closely tracked the language of Kan. Stat. Ann. § 21-5510(a)(1), 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.  While Kan. Stat. Ann. § 21-5510(a)(1) and (4) are similar, and the differences between the two would likely be lost on a jury, those differences are not mere semantics.  The Kansas Court of Appeals agreed with the State that the instructions were legally erroneous but not clearly erroneous based on the evidence against Jones.  The Kansas Supreme Court disagreed, holding that there was insufficient evidence to convict Jones under both sections (a)(1) and (4).  The evidence was not strong enough to render this error harmless. The Kansas Supreme Court reversed Jones’s convictions for counts one and three as the jury instructions were clearly erroneous.

Key Authority: Kan. Stat. Ann. § 21-5510(a)(1), (4) (Supp. 2014).