                         NOT DESIGNATED FOR PUBLICATION

                                            No. 120,353

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                     DAVID WAYNE ROGERS,
                                           Appellant.


                                  MEMORANDUM OPINION


       Appeal from Butler District Court; JANETTE L. SATTERFIELD, judge. Opinion filed March 20,
2020. Affirmed.


       Kasper Schirer, of Kansas Appellate Defender Office, for appellant.


       Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.


Before WARNER, P.J., POWELL, J., and LAHEY, S.J.


       PER CURIAM: David Wayne Rogers received a life sentence with a mandatory
minimum term of 25 years in prison following his guilty plea to one count of aggravated
indecent liberties with a child, an off-grid crime. He also pled guilty to 27 counts of
sexual exploitation of a child, severity level 5 person felonies, and was sentenced to 32
months for each count to run concurrently with the life sentence. Rogers appeals the
district court's denial of his motion to depart to a lesser grid sentence. He contends the
district court erred by (1) failing to apply the sentencing directives of K.S.A. 2019 Supp.




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21-6601 and (2) failing to find substantial and compelling reasons to depart. Finding no
error by the district court, we affirm his sentence.


                        FACTUAL AND PROCEDURAL BACKGROUND


       The aggravated indecent liberties charge stems from an incident involving Rogers'
five-month-old daughter. In September 2017, Rogers' wife, T.R., left him alone at home
to watch their infant twins while she ran some errands. When T.R. left the house, Rogers
took one child to the bedroom, laid her on the bed, and removed her clothing and diaper.
He engaged in lewd fondling of the child and then began to masturbate approximately 6
to 8 inches away from her. Approximately five minutes after leaving, T.R. returned home
and walked in on Rogers masturbating near the child. T.R. knew that Rogers had
previously possessed child pornography, and this crime occurred the first time T.R. left
the children alone with Rogers.


       The 27 counts of sexual exploitation were based on sexually explicit images of
prepubescent females found on Rogers' cell phone following a forensic examination.
Rogers admitted he had an addiction to child pornography.


       Rogers waived his preliminary hearing and pled guilty to all charges. Under
Jessica's Law, K.S.A. 2019 Supp. 21-6627(a)(1)(C), Rogers faced a life sentence with a
mandatory minimum of 25 years before being eligible for parole on the aggravated
indecent liberties conviction. Prior to sentencing, Rogers filed a motion for durational
departure from the presumptive off-grid hard 25 sentence.


       In his departure motion, Rogers argued that four mitigating factors constituted
substantial and compelling reasons to justify the departure. First, he was 42 years old
with no criminal history. Second, he quickly accepted responsibility for his actions, fully
cooperated with law enforcement during the investigation, and he expressed remorse for


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his actions. Third, he sought counseling and treatment immediately following the
incident. Rogers noted that his sex offender evaluation showed that he posed a low risk of
reoffending within the next five years, and his treating therapist believed Rogers could
successfully complete outpatient sex offender treatment. Finally, Rogers’ wife, and
mother of the victim, did not want him to be sentenced to long-term incarceration.


       The State opposed the departure motion, noting that in addition to his 5-month-old
daughter, Rogers had exploited more than 20 other child victims through the
downloading of their images on his phone. Despite being twice caught by his wife with
child pornography, Rogers failed to seek treatment even though his wife requested it.
Rogers admitted to authorities that he sought out child pornography in chat rooms and
distributed those images to other like-minded individuals. Finally, the State argued that
there were times Rogers admitted to soliciting, and sometimes receiving, sexually explicit
images from 10- to 15-year-old females. Because of Rogers' background, the specific
facts of the case, and a concern for public safety, the State claimed that Rogers' proposed
mitigating factors did not provide substantial and compelling reasons to depart to a grid
sentence.


       The departure hearing took place over two days, and Rogers called three
witnesses: Dr. John Caparole; his wife, T.R.; and Dr. Bruce Nystrom. Dr. Caporale,
Rogers' group therapist, is a licensed clinical psychotherapist who specializes in working
with sex offenders. He testified that Rogers consistently participated in both individual
and group therapy, took full responsibility for his actions, expressed regret for what he
did, and expressed a desire to change his behavior. Dr. Caporale believed Rogers could
successfully complete the sex offender treatment program. He also acknowledged that,
even with successful completion of the program, there was a 50 percent risk of
reoffending.




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       T.R. testified she did not think Rogers should be sentenced to the hard 25 because
he voluntarily sought treatment and fully cooperated in the investigation. The district
court questioned T.R. about the two times she discovered Rogers with child pornography.
She first caught him with child pornography six years prior, and Rogers did not seek
treatment. She caught him a second time right before they decided to have children.
Again, Rogers did not seek treatment, even though T.R. asked him to do so. She also
confirmed that the aggravated indecent liberties incident occurred the first time she ever
left the children home alone with Rogers. Although she did not believe Rogers would do
it again, she could not trust him to be alone with the children. She thought he should have
an opportunity for parole after serving 2 to 5 years.


       Dr. Bruce Nystrom, a licensed psychologist specializing in psychological
assessments, performed an evaluation of Rogers and administered multiple psychological
tests, including the Minnesota Multiphase Personality Inventory (MMPI-2), which Dr.
Nystrom described as the standard of all psychological tests. Two other tests, specific to
sexual issues, were also administered: the Garos Sexual Behavior Inventory and the
Static-99R. The Garos test focuses on uncovering an individual's sexual behaviors and
attitudes, while the Static-99R assesses an individual's risk for sexually reoffending at
some point in the future. Dr. Nystrom stated the Garos test indicated that Rogers had
some internal conflicts between sexual desires and interests and a resulting shame
associated with acting out on those desires or interests. In other words, Rogers'
inappropriate and inconvenient thoughts about his sexual desires and interests were
somewhat intrusive. Dr. Nystrom noted this could lead to a lack of control.


       The Static 99-R is not a psychological test but rather an actuarial assessment that
quantifies the risk that a sexual offender will reoffend in the future. Dr. Nystrom testified
that the Static-99R assessment showed that Rogers presented a low risk—2.1%—of
sexually reoffending over the next 5 years. However, Dr. Nystrom also stated that he
does not always agree with the Static-99R assessment and cautioned against placing too


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much trust in the test's conclusions. For example, in Rogers' case, Dr. Nystrom noted the
Static-99R assessment did not factor in Rogers' previous possession or long-term use of
child pornography because those incidents were never charged and did not result in
convictions. He also testified the likelihood of reoffending would be higher if the
evaluation period exceeded five years.


       Dr. Nystrom diagnosed Rogers with unspecified personality disorder and
pedophilic disorder. He identified Rogers as a fixated offender, meaning someone who
never achieved psychosexual maturity because it became fixated at some point during his
development. This resulted in Rogers' preferred sexual partners being prepubescent
children. Dr. Nystrom also testified that the overall treatment prognosis for fixated
offenders is very poor. He recommended that Rogers enter a long-term intensive sex
offender treatment.


       After considering the witnesses' testimony and arguments on Rogers' motion for
downward departure, the district court found two mitigating factors existed: Rogers' lack
of criminal history and his acceptance of responsibility for his crimes, cooperation with
the investigation, and initiating treatment immediately after the incident. The district
court did not find these mitigating factors to be substantial and compelling and denied
Rogers' departure motion.


       The district court accordingly imposed a life sentence with the minimum
mandatory hard 25 for the aggravated indecent liberties count and 32 months'
imprisonment on each of the 27 counts of sexual exploitation of a child, to run
concurrently with the life sentence. The district court further ordered that Rogers be
subject to lifetime parole and monitoring and to lifetime registration requirements upon
release from prison.


       Rogers timely appeals.


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I.     DID THE DISTRICT COURT FAIL TO CONSIDER ARTICLE 66 SENTENCING GUIDANCE
       IN DENYING ROGERS' MOTION FOR DOWNWARD DEPARTURE?



       Rogers first argues the district court failed to apply the directives of K.S.A. 2019
Supp. 21-6601 when it sentenced him to long-term incarceration and failed to consider
more lenient sentencing options. He contends he is not a "dangerous offender" under
K.S.A. 2019 Supp. 21-6601, which provides:


       "K.S.A. 21-6601 through 21-6629, and amendments thereto, shall be liberally construed
       to the end that persons convicted of crime shall be dealt with in accordance with their
       individual characteristics, circumstances, needs and potentialities as revealed by case
       studies; that dangerous offenders shall be correctively treated in custody for long terms as
       needed; and that other offenders shall be dealt with by probation, suspended sentence,
       fine or assignment to a community correctional services program whenever such
       disposition appears practicable and not detrimental to the needs of public safety and the
       welfare of the offender, or shall be committed for at least a minimum term within the
       limits provided by law."


       Rogers' argument is raised for the first time on appeal. Generally, issues not raised
before the district court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971,
318 P.3d 987 (2014). Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34) requires an
appellant to explain why the issue is properly before the appellate court. Appellate courts
may hear an issue not raised with the district court when:


       "(1) The newly asserted theory involves only a question of law arising on proved or
       admitted facts and is determinative of the case, (2) consideration of the theory is
       necessary to serve the ends of justice or to prevent the denial of fundamental rights, and
       (3) the district court is right for the wrong reason." State v. Phillips, 299 Kan. 479, 493,
       325 P.3d 1095 (2014).




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Rogers argues the first two exceptions permit us to consider this issue.
         We do not agree with Rogers' argument that the "dangerous offender" status for
sentencing purposes is a pure a legal question arising on proved or admitted facts and
finally determinative of the case. Rogers points to the Static-99R calculation reflecting he
has only a 2.1 percent risk of reoffending in the next five years as the factual basis for his
claim that he is not a dangerous offender. But we note the district court made no
particular factual finding concerning the risk that Rogers would reoffend in the future,
and the State does not concede the actuarial assessment is accurate. Dr. Nystrom
expressed significant concern about the accuracy of the test, noting the inherent
unreliability problems with the outcome of the assessment. And Dr. Caporale placed the
likelihood of reoffense, even with successful sex offender treatment, at 50 percent.
Because no findings of fact were made by the district court that it accepted the Static-99R
result as an accurate or reliable assessment of Rogers' actual likelihood of reoffending
and because Rogers' argument explicitly relies on this fact, we decline to find the
"dangerous offender" determination to be solely a question of law based on admitted
facts.


         We likewise decline to find or apply the second exception cited by Rogers—that
consideration of the issue is necessary to serve the ends of justice and to prevent the
denial of Rogers' fundamental rights. Because we address Rogers' challenge to the
departure ruling by the district court, consideration of Rogers' new claim is not necessary
to serve the ends of justice or prevent denial of his fundamental rights. Furthermore, in
the absence of a departure, we observe that Rogers' sentence was for the minimum term
for his aggravated indecent liberties conviction, which is consistent with the directives in
K.S.A. 2019 Supp. 21-6601 for those not considered to be dangerous offenders.


         Finding no applicable exception, we determine that Rogers’ failure to raise the
issue before the district court precludes our review of it on appeal.



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II.    DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DENYING ROGERS' MOTION
FOR DOWNWARD DEPARTURE?



       Rogers' second issue on appeal is his contention the district court abused its
discretion by failing to find substantial and compelling reasons to depart to a grid
sentence following review of the mitigating circumstances in this case.


       Standard of Review


       When reviewing a district court's decision of whether the mitigating circumstances
warrant a departure sentence under Jessica's law, the appellate court applies the abuse of
discretion standard of review. See State v. Jolly, 301 Kan. 313, 325, 342 P.3d 935 (2015).
A district court abuses its discretion when: (1) no reasonable person would take the view
adopted by the judge; (2) a ruling is based on an error of law; or (3) a ruling is based on
an error of fact. See 301 Kan. at 325.


       Discussion


       Rogers contends the district court disregarded the mitigating factors and thus
abused its discretion in imposing a hard 25 sentence.


       Sentencing under Jessica's Law, as set forth in K.S.A. 2019 Supp. 21-6627(a),
provides for a life sentence with a mandatory minimum term of imprisonment of 25
years. However, the statute expressly authorizes and provides a procedure for imposing a
departure sentence from the mandatory minimum sentence. See K.S.A. 2019 Supp. 21-
6627(d). In evaluating a request for a departure sentence under Jessica's Law, the district
court must determine whether substantial and compelling reasons exist for a departure
"following a review of mitigating circumstances." K.S.A. 2019 Supp. 21-6627(d)(1);
Jolly, 301 Kan. at 321-23. The statute contains a nonexclusive list of mitigating


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circumstances. See K.S.A. 2019 Supp. 21-6627(d)(2). We have defined "substantial" in
this context as something that is real, not imagined, something with substance and not
ephemeral; the term "compelling" implies that the court is forced, by the facts of a case,
to leave the status quo or go beyond what is ordinary. Jolly, 301 Kan. at 313, Syl. ¶ 9.


       In reviewing a motion to depart in a Jessica's Law case, "the district court [must]
first . . . review the mitigating circumstances without any attempt to weigh them against
any aggravating circumstances. Then, . . . the [district] court determines whether the
mitigating circumstances rise to the level of substantial and compelling reasons to depart
from the otherwise mandatory sentence." 301 Kan. at 324. If the district court grants a
departure, it must state on the record the substantial and compelling reasons justifying the
departure. K.S.A. 2019 Supp. 21-6627(d)(1). But if the district court denies a departure, it
is not required to state its reasons for the denial. State v. Baptist, 294 Kan. 728, 735, 280
P.3d 210 (2012), disapproved on other grounds by State v. Jolly, 301 Kan. 313.


       Here, the district court did not abuse its discretion when it found no substantial
and compelling reasons to warrant a departure to a grid sentence. At the conclusion of the
second day of the sentencing hearing, consistent with our Supreme Court’s guidance in
Jolly, the district court noted its task was not to look at aggravating factors or weigh those
factors against mitigating factors, but to look only at the mitigating factors.


       In its evaluation of the evidence, the district court determined that two mitigating
factors existed: Rogers' lack of criminal history and the fact that Rogers took full
responsibility for his actions, cooperated with the investigation, and started psychological
treatment for his sexual issues. The district court did not comment on one of the
mitigating factors identified by Rogers in his departure motion—the testimony of T.R. in
support of a lesser sentence. Although the testimony of a victim for a lesser sentence can
be a mitigating factor, that conclusion is not a mandatory one. See State v. Heath, 21



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Kan. App. 2d 410, Syl. ¶ 3, 901 P.2d 29 (1995) ("The statements of victims of crime
and/or their families may constitute substantial and compelling reasons for departure.").


       In light of the facts of the case, the district court then determined that these
mitigating factors did not present substantial and compelling reasons for departure from a
Jessica's Law sentence. Though not required to provide an explanation for denial of the
motion to depart, the district court here stated:


       "I've listened to the particular facts. The aggravated indecent liberties charge that forms the basis
       of the Jessica's Law charge in Count 1, as well as, the sexual—which involved your own minor
       child—a 6-month-old child [sic]—and in addition the 27 counts of sexual exploitation of a child,
       which are the child pornography images that were described and that I viewed today. And the
       manner and way in which the nature of this offense. The inherent nature of the offense. The
       manner in which this was carried out.


               "I am simply not forced by the facts or compelled by the facts to grant your departure.
       I—given your long-term nature of your struggle with this, given your fixation, given the facts of
       the case, given the totality of everything, I simply—including the evaluations and that
       testimony—I simply cannot be convinced or compelled based on the two mitigating factors that I
       found, that you are not likely to reoffend or that you're not a public safety risk to children in
       general. To your own child during her childhood and formative years. And that I should reduce
       your sentence. I cannot find that. So I do not grant the departure."


       Given all the facts of the case, we find reasonable people could agree with the
district court's evaluation and conclusion. Thus, the district court did not abuse its
discretion in denying Rogers' motion for departure.


       Affirmed.




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