                  IN THE SUPREME COURT OF THE STATE OF KANSAS

                                            No. 115,834

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                         JONELL K. LLOYD,
                                            Appellant.


                                 SYLLABUS BY THE COURT


1.
        Basing a conviction in whole or in part on the coerced statement of a witness may
deprive a criminal defendant of due process.


2.
        K.S.A. 2017 Supp. 21-6624(a) contains no language requiring the State to prove
that bodily harm was an element of the felony serving as an aggravating factor.


3.
        K.S.A. 2017 Supp. 21-6624(a) requires the State to prove only that the previous
offense was a felony and that, during the course of committing that felony, the defendant
inflicted great bodily harm, disfigurement, dismemberment, or death on another.


        Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed August 10,
2018. Affirmed.


        Clayton J. Perkins, of Kansas Appellate Defender Office, argued the cause and was on the briefs
for appellant.

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        Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


The opinion of the court was delivered by


        ROSEN, J.: Jonell K. Lloyd was convicted of first-degree premeditated murder,
felony murder, and abuse of an infant victim. On direct appeal, this court affirmed his
conviction but remanded the case to the trial court for resentencing, with a jury
impaneled to make specific factual findings supporting or not supporting an enhanced
sentence. He now appeals from the newly imposed sentence.


                                                  FACTS


        The facts supporting the conviction were set out in State v. Lloyd, 299 Kan. 620,
325 P.3d 1122 (2014):


                "Chavira Brown was 17 months old when she was found dead in the attic of
        Lloyd's house. She was born to Jessica Jackson, who believed Lloyd was the child's
        father, so he occasionally watched Chavira. Lloyd lived with his girlfriend, Tameika
        Loudermilk, and their 8-month-old son.


                "As Jackson testified at trial, Lloyd left her a voicemail message on July 31,
        2008, saying he had lost Chavira at a city park. Jackson and her sister went to Lloyd's
        house, where he explained he had taken Chavira and his son to the park but lost her while
        changing the boy's diaper. Lloyd would later admit he fabricated this explanation. He
        later testified he lost Chavira at his house but did not want to say so because he sold
        drugs there. Jackson testified Lloyd asked the two women not to call the police because
        he had outstanding arrest warrants. Jackson's sister, however, reported the child missing,



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and then the two women went to the park to look for Chavira. Lloyd admits he left the
house.


         "When Jackson arrived at the park about 8 p.m., police officers were already
there. After speaking with her, an officer drove Jackson to Lloyd's house, where the
officer talked with Loudermilk, who initially denied knowing Lloyd. But after another
person told officers Lloyd lived there, Loudermilk admitted Lloyd had been at the house,
but she did not know his whereabouts and had not seen Chavira recently. Police arrested
Loudermilk for obstruction and took her into custody, which led to a series of interviews
at the police station that began after midnight. Loudermilk's statements to investigators
and her trial testimony were central to the investigation and prosecution and play
prominently in the conviction-related issues on appeal.


         "Detective Brian Hightower first interviewed Loudermilk. She initially repeated
that she did not know Chavira's whereabouts, but she did describe how Lloyd had
shouted at Chavira because she wet herself. At 2:53 a.m., Officer Michael John Nagy
took over the interview and admits he was 'pretty rough' in his questioning in order to get
Loudermilk to tell where Chavira was. Nagy was aware Loudermilk's infant son was in
protective custody after her arrest, so he told Loudermilk he would help get her son back
from protective custody if she cooperated. He also told her she would 'be in a world of
hurt' if she did not help locate Chavira. But Loudermilk offered no additional
information. Nagy then changed tactics.


         "Nagy told Loudermilk she would go to jail for a long time if something bad
happened to Chavira; and, if that happened, her son would go into 'the system' and she
would be unable to see him. Toward the end of this interview, Nagy told Loudermilk he
was going to get the truth from another witness who had talked to Lloyd and knew what
happened. Nagy told her to think about whether charging her with murder was fair to her
and her son. He then left the room and Detective Lennie Rose entered. At around 4:45
a.m., Loudermilk made statements incriminating Lloyd—most critically, she said she
thought Chavira was in the attic of the house.




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         "Officers secured a search warrant and discovered in the attic what they initially
described as a black bag, which was actually a sofa cushion cover filled with three black
plastic trash bags, one bag inside the other, and 'knotted, tied.' The innermost bag
contained Chavira's body.


         "The State charged Lloyd alternatively with first-degree premeditated murder and
felony murder with the underlying felony of child abuse. It also charged him with child
abuse.


         "At trial, Loudermilk testified as a State witness. She said she was at home the
day Chavira died and mainly stayed in her bedroom. She said she saw Lloyd in the living
room hitting Chavira with a belt for about 20 minutes because the child had wet herself.
Loudermilk did nothing to stop him. She said she walked through the living room later
and saw Lloyd with his hand around the backside of Chavira's neck and heard her crying.
Loudermilk returned to the bedroom, leaving the door partially open. She continued to
hear Chavira crying. Loudermilk said she heard Chavira making noise for 10 to 15
minutes, as if Chavira could hardly breathe.


         "Loudermilk said Lloyd then carried Chavira to the den at the back of the house.
She said she did not know but thought Chavira was dead. Lloyd returned to the front of
the house without Chavira, took trash bags from under the kitchen sink, and then went to
Loudermilk's room, took her phone, and went back to the kitchen to make a call.
Loudermilk said Lloyd paced back and forth until Jackson and her sister arrived.
Loudermilk heard Lloyd tell Jackson, 'It's going to be okay, we're going to find her.' But
before Lloyd left the house, Loudermilk said Lloyd told her, 'You don't know Chavira
and you haven't seen her.'


         "After Lloyd left, Loudermilk said, he called and told her to pick up some jeans
from the living room floor or else he would come back and kill her. She said she
complied, putting the jeans in a plastic bag in her room. In their later search, officers
found a trash bag containing a pair of jeans with what appeared to be attic insulation on
them in a bedroom.


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        "Detective Rose testified after Loudermilk about the police interviews and what
Loudermilk said. His testimony was largely consistent with Loudermilk's. Rose said
Loudermilk told him that Chavira had been crying all day, that Lloyd spanked Chavira
with his hand and belt after the child wet her pants, and that Loudermilk said she saw
Lloyd holding Chavira down with his hand around her throat while Chavira made a
choking sound. He quoted Loudermilk as saying, 'That sound lasted for about an hour
and then it stopped.' Loudermilk also told him that after the noise stopped, Lloyd walked
to a back room carrying Chavira; grabbed several kitchen bags; returned to the back
room; asked for her cell phone; and then paced back and forth. Loudermilk also told Rose
that two females came to the house and talked to Lloyd. She heard crying and 'mention of
something about the park and we'll find her.'


        "After the State rested, Lloyd called Detective Hightower and Officer Nagy to
testify about Loudermilk's police interview. Nagy explained what he told Loudermilk
during the interview to prompt her cooperation. Lloyd then moved to strike testimony,
claiming Loudermilk's statements were coerced. . . .


        "Lloyd testified in his defense and substantially contradicted Loudermilk's
testimony. He told the jury on the day Chavira disappeared he needed to clean an area
where he kept his 11 dogs. He said Loudermilk would not watch Chavira, so he brought
the child with him. He said he put Chavira on the back porch, but she started crying, so
he took her outside to a fenced-in backyard accessible from the street. Lloyd said he went
into the house for cleaning supplies and when he returned, Chavira was gone. Lloyd
testified he ran around the house and down the street but could not find her. He said he
called Jackson to tell her what happened but could not reach her, so he called her friend
and lied by telling her Chavira was lost in the park.


        "Lloyd denied asking Loudermilk to pick up any clothes or threatening to kill
her. He admitted spanking Chavira with a belt the day she disappeared, explaining she
had wet the bed and this was his potty training process. But he said, aside from this
spanking, he did not hurt Chavira or place her inside the trash bags where police found
her body. He denied killing Chavira and did not know who did.


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                  "Deputy Coroner Ronald Distefano performed Chavira's autopsy. He concluded
          she died of asphyxiation, explaining this could have been caused by covering her mouth
          and nose; a constricting force around her neck; compression of her chest and abdomen; or
          an environment with limited or no oxygen. Distefano noted Chavira's asphyxiation
          caused brain swelling, which he said was a significant symptom because such swelling
          takes time to occur. He concluded the swelling indicated hours elapsed between death
          and the initial asphyxiation injury to the brain. He also determined Chavira had early
          evolving pneumonia, which occurs when death is prolonged.


                  "The jury unanimously convicted Lloyd of first-degree murder under both
          prosecution theories: premeditated murder and felony murder in the course of child
          abuse. The jury also convicted him of child abuse." 299 Kan. at 622-26.


          In that appeal, Lloyd raised three issues asserting trial errors: the evidence at trial
was insufficient to support a premeditated murder conviction; Loudermilk's pretrial
statements and trial testimony were the products of coercion and should have been
suppressed; and evidence of another crime should not have been admitted. A majority of
this court rejected the asserted trial errors and affirmed the conviction. In particular, the
court elected not to address the claim of witness coercion, holding that the issue was not
preserved in an adequate and timely fashion before the trial court.


          The court found a sentencing violation in the trial court's imposition of a hard 50
sentence without the jury making the findings necessary to support the sentence, in
violation of Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013). As a consequence, the case was remanded for a new sentencing hearing. 299 Kan.
at 645.


          The sentencing trial on remand was held in December 2015. The new jury heard
no evidence significantly different from what was presented in the first trial, including the
testimony of the police investigators. The State attempted to serve a subpoena on
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Loudermilk to compel her to testify at the remand trial, but, despite extensive efforts, was
unable to locate her. As a consequence, the trial court granted the State's motion to allow
reading of her transcribed testimony from the first trial to the jury. The jury found two
aggravating factors, and the court again sentenced Lloyd to a minimum term of
imprisonment of 50 years, to run consecutive with the 128 months imposed for the other
counts at the first trial. He timely appeals from that sentence.


                                         ANALYSIS


       Lloyd initially argues that the trial court committed reversible error when it
allowed the State to present Loudermilk's pretrial statements and testimony from the first
trial. Lloyd asserts that threats to include Loudermilk as a defendant in criminal charges
resulting from the infant's death, as well as threats to use the incident against Loudermilk
in a parental rights determination regarding her own child, undermined the voluntariness
and veracity of Loudermilk's description of what she witnessed.


       Loudermilk testified at the first trial how Lloyd treated Chavira before the murder,
how the murder was carried out, and how Lloyd disposed of the body. In addition,
statements that she made to the police investigating the death came into evidence through
the testimony of police investigators. This testimony was material to the remand jury's
consideration of whether Lloyd committed the crime in an especially heinous, atrocious,
or cruel manner, an aggravating factor under 2017 Supp. K.S.A. 21-6624(f).


       Over Lloyd's objection, Loudermilk's testimony from the first trial was read to the
remand trial jury. The trial court allowed the prior testimony under two theories:
Loudermilk was unavailable and her testimony was a prior sworn statement or testimony
of a witness; and K.S.A. 2017 Supp. 21-6620(e)(3), relating to evidence concerning
aggravating circumstances, provides a separate statutory basis for the admission of the
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testimony. The court saw no due process violation in admitting the testimony because any
putative coercion exercised by the State in threatening a parental rights proceeding was
attenuated by the fact that the proceeding was completed before Loudermilk testified in
the first trial.


        Lloyd urges this court to find error in the admission of Loudermilk's testimony.
While the United States Supreme Court has held that a defendant's coerced confession
cannot be used at trial, see Jackson v. Denno, 378 U.S. 368, 385-86, 84 S. Ct. 1774, 12 L.
Ed. 2d 908 (1964), no Supreme Court case has addressed the issue of whether coerced
witness testimony may be used against a defendant at trial. This court has held that basing
a conviction in whole or in part on the coerced statement of a witness may deprive a
criminal defendant of due process. State v. Daniels, 278 Kan. 53, 65-66, 91 P.3d 1147
(2004).


        We will assume without deciding that the admission of Loudermilk's transcribed
testimony was erroneous. Because such error would constitute denial of due process, this
court will apply the constitutional harmless error standard. Under this standard, we
determine whether the State has proved that there is "no reasonable possibility that the
error affected the verdict." State v. Ward, 292 Kan. 541, 569-70, 256 P.3d 801 (2011);
see also State v. Robinson, 308 Kan. 402, 421 P.3d 713 (2018).


        In his argument to this court, Lloyd contends that both Loudermilk's statements to
police immediately after Chavira's death and Loudermilk's sworn testimony in court were
the product of unlawful coercion. We need not address the statements made to the police
because Lloyd voiced no objection to the introduction of those statements through police
witnesses. No continuing objection was raised with respect to Loudermilk's statements to
investigators; consequently, we cannot find error in admitting them to the jury for
consideration.
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       On the other hand, Lloyd stated on the record and made an ongoing objection to
the admission of Loudermilk's transcribed testimony from the first trial. Her statements
about Lloyd's activities and the location of the body had already come into evidence
through the testimony of police investigators. Her trial testimony did not recant previous
statements to the police and gave no reason to believe that her sworn testimony
reaffirming the earlier statements was untruthful or inaccurate. We therefore conclude
that any error in providing the jury with the transcription of her trial testimony was
harmless and provides no grounds for reversal


       Lloyd next argues that the State failed to present sufficient evidence to show
beyond a reasonable doubt that Lloyd had a prior felony conviction for a crime in which
he inflicted great bodily harm, disfigurement, dismemberment, or death.


       At the remand trial, the State argued, and the jury was instructed on, two bases for
imposing a hard 50 sentence: a previous conviction of a felony that resulted in great
bodily harm and commission of the instant crime in an especially heinous, atrocious, or
cruel manner. The jury specifically found that the State established both grounds beyond
a reasonable doubt and that they outweighed any mitigating factors. Lloyd now argues
that the evidence was insufficient to prove that his previous felony inflicted great bodily
harm. He does not contest the sufficiency of the evidence showing that the crime was
heinous, atrocious, or cruel.


       "When the sufficiency of the evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt." State v.
McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014). "Appellate courts do not reweigh


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evidence, resolve evidentiary conflicts, or make witness credibility determinations." State
v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016).


       K.S.A. 2017 Supp. 21-6624(a) includes among aggravating circumstances that a
jury may consider that "[t]he defendant was previously convicted of a felony in which the
defendant inflicted great bodily harm, disfigurement, dismemberment, or death on
another."


       In support of this statutory factor, the State relied on Lloyd's 2007 guilty plea to
aggravated assault based on an incident in which he shot Loudermilk in the foot. Lloyd
argues on appeal that aggravated assault contains no essential legal element of inflicting
bodily harm and, therefore, it cannot fit the statutory designation of a previous felony
inflicting great bodily harm, disfigurement, or dismemberment.


       This court exercises unlimited review when interpreting criminal statutes.
Legislative intent governs that review, and the court has determined that reliance on the
plain and unambiguous statutory language is the best and only safe rule for determining
the intent of the legislature. We therefore read statutory language as it appears, without
adding or deleting words. We move to statutory construction only if the language is
unclear or ambiguous. State v. Gray, 306 Kan. 1287, 1294, 403 P.3d 1220 (2017).


       Nothing in the plain language of K.S.A. 2017 Supp. 21-6624(a) requires that
bodily harm be an element of the felony serving as an aggravating factor. The statute
requires only that the previous offense is a felony and that, during the course of
committing that felony, the defendant inflicted significant harm. A defendant may enter a
plea to a nonperson felony, but a jury may still consider that felony as an aggravating
factor if the facts underlying the conviction show that the defendant inflicted great bodily
harm on another person.
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       In the previous appeal, we held that the evidence sufficed to show beyond a
reasonable doubt that Lloyd "was previously convicted of a felony in which Lloyd
inflicted great bodily harm or disfigurement." 299 Kan. at 645. The evidence was
essentially the same in the second trial. Sergeant Lenny Rose of the Wichita Police
Department testified that he had interviewed Loudermilk at the hospital, where she had
been admitted and spent the night after Lloyd shot her in the foot. Viewing the evidence
in a light most favorable to the State, we conclude that the jury had sufficient evidence to
enable it to reach the reasonable conclusion that Lloyd committed a felony that inflicted
great bodily harm or disfigurement on Loudermilk.


       Finally, Lloyd asks this court to reconsider its decisions in State v. Bernhardt, 304
Kan. 460, 480-81, 372 P.3d 1161 (2016), and State v. Robinson, 306 Kan. 431, 444, 394
P.3d 868 (2017), holding that the retroactivity provision of K.S.A. 2017 Supp. 21-6620(e)
does not violate ex post facto prohibitions. Lloyd offers no new analysis that would lead
us to revisit those decisions, and we decline to do so.


                                       CONCLUSION


       Finding no error below, we affirm the sentence imposed following the remand.




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