                                          No. 112,560

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      STATE OF KANSAS,
                                          Appellee,

                                                v.

                                    GABRIEL A. AGUILAR,
                                        Appellant.


                               SYLLABUS BY THE COURT

1.
       In multiple acts cases, the district court is required to instruct the jury that it must
unanimously agree on a specific act that constitutes the crime charged or the State must
choose which act it is relying upon for conviction.


2.
       When a jury instruction issue is raised for the first time on appeal, the standard of
review is whether the instruction is clearly erroneous as provided in K.S.A. 2015 Supp.
22-3414(3).


3.
       In determining whether an instruction was clearly erroneous, an appellate court
first determines whether there was any error. If the instruction was legally and factually
appropriate, the district court did not err in giving it.




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4.
        When reviewing jury instructions to determine whether they are legally
appropriate and properly state the law, an appellate court considers the instructions
together as a whole and does not focus on any one instruction.


5.
        The pattern jury instruction on multiple acts, PIK Crim. 4th 68.100, is a correct
statement of Kansas law on multiple acts. The use of the word "could" in the instruction
is not misleading to jurors as to the required burden of proof.


        Appeal from Shawnee District Court; DAVID B. DEBENHAM, judge. Opinion filed February 26,
2016. Affirmed.


        Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.


        Jodi Litfin and Kyle Edelman, assistant district attorneys, Chadwick J. Taylor, district attorney,
and Derek Schmidt, attorney general, for appellee.


Before MALONE, C.J., PIERRON, J., and WALKER, S.J.


        WALKER, J.: A jury convicted Gabriel A. Aguilar of three counts of aggravated
indecent liberties with a child and one count of sexual exploitation of a child. On appeal,
Aguilar contends his convictions should be reversed because the jury instruction on
multiple acts was clearly erroneous. In particular, he argues that jurors may have
interpreted the instruction to mean that the State's evidence already established one of the
essential elements of the crime charged, resulting in the district court impermissibly
directing the jury to find Aguilar guilty. But since we find that the jury instruction was
both legally and factually appropriate, the convictions are affirmed.




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                                           FACTS

       In January 2013, 9-year-old V.S. lived with her two brothers, her mother (Mother),
and Aguilar, Mother's boyfriend, in Aguilar's house in Topeka.


       On January 18, 2013, V.S. complained to her mother about a rash between her
legs. Mother instructed V.S. to apply some baby powder to the area, thinking it was just
chafing. But 2 days later, V.S. told Mother that the rash had not gone away and alleged
that Aguilar had been sexually abusing her. V.S. had made a similar allegation 1 year
earlier, but her mother thought she was lying and had not reported it. After the latest
disclosure, Mother told Aguilar that she and V.S. were going to Walmart, but Mother
actually took V.S. to her ex-husband's house to spend the night.


       The next day, Mother took V.S. to the hospital to report the sexual abuse
allegations. The hospital then called the Topeka Police Department. Detective Jack
Sanders and Joy Thomas, a sexual assault nurse examiner, interviewed V.S. at the
hospital. During the interview, Sanders learned that Aguilar had allegedly taken explicit
photos of V.S. Both Sanders and Thomas said that they would have preferred to have had
specially trained interviewers at LifeHouse Child Advocacy Center conduct the first
interview with V.S. but that they were unable to do so because the center was closed that
day.


       The following day, Ann Goodall, a social work specialist with the Kansas
Department for Children and Families, interviewed V.S. at LifeHouse. Goodall later
testified that V.S. had told her that a male had grabbed her breasts and forced her to touch
his penis. Goodall also stated that V.S. had said the male had put his penis in her mouth
and tried to put his penis in her vagina. Following that interview, V.S. consented to be
physically examined by Thomas, but Thomas did not collect evidence for a rape kit




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because 72 hours had passed since V.S. had had any contact with Aguilar. Thomas did
not find any physical injuries but noted that a lack of physical injuries was not unusual.


       Meanwhile, police officers arrived at Aguilar's house and took him in for
questioning. The police then obtained a search warrant for the house and Aguilar's cell
phones. On two cell phones, including one that Aguilar identified as his, police
discovered over 40 photos of V.S. with her breasts exposed, an adult male's hand groping
V.S.'s breasts, an adult male's hand touching the vaginal opening of a juvenile female,
and an adult male's penis touching a juvenile female's vaginal area. The police
determined that two of the photos, State's Exhibits 9 and 10, had been taken on January 9,
2013, at 9:39 p.m. by the same model of cell phone as Aguilar's.


       The State charged Aguilar with three counts of aggravated indecent liberties with a
child under 14 years old—one count for touching V.S.'s vaginal area with his fingers, one
count for touching her vaginal area with his penis, and one count for touching her breasts
with his hands—and one count of sexual exploitation of a child for possessing a sexually
explicit photograph of a child under 18 years old. The trial began on March 31, 2014.


       During the trial, Mother testified for the State. She was able to recognize and
identify the clothing in the photographs as items that V.S. owned, some of which she had
turned over to police. She testified that Aguilar had a scar on his thumb that she
recognized in some of the photos. Mother also said that she recognized Aguilar's penis in
State's Exhibits 43 and 44, which depicted an adult male's penis touching a juvenile's
vaginal area.


       V.S. also testified. She said that Aguilar had touched her in inappropriate ways
during the time she lived with him, but she could not remember when it began. She
testified that Aguilar had touched her vagina with his penis once. She recalled that he had
touched her vagina with his hands more than once but could not remember if it had


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happened more than 10 times. She also said that Aguilar had touched her breasts more
than five times. She testified that Aguilar took photos of her with his cell phone. She
identified herself in many of the photos presented by the State and named Aguilar as the
one who took many of the photos. V.S. identified Aguilar as the individual touching her
in several of the photos depicting an adult male's hand touching her breast. She
recognized the photo depicting an adult male's hand touching a juvenile's vagina and said
that Aguilar had taken it. She also testified that she remembered something like the
touching depicted in State's Exhibit 44, which displayed an adult male's penis touching a
juvenile's vagina, happening to her.


       The jury found Aguilar guilty of all four counts. The district court sentenced him
to life imprisonment without parole for 25 years for each count of aggravated indecent
liberties and 38 months in prison with lifetime postrelease supervision for sexual
exploitation of a child. The district court ordered the sentences to run concurrently.


       Aguilar appeals his convictions to this court.


                                         ANALYSIS

       Although the State brought only three counts of aggravated indecent liberties with
a child under 14 years old and one count of sexual exploitation of a child, it presented
evidence of multiple incidents that could support each charge. Because criminal
defendants have a statutory right to a unanimous verdict, jurors have to agree on a
particular act for each of the counts charged when the State has presented evidence of
multiple acts. State v. De La Torre, 300 Kan. 591, 595, 331 P.3d 815, cert. denied 135 S.
Ct. 728 (2014); State v. Santos-Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014); see K.S.A. 22-
3421; K.S.A. 22-3423(1)(d). To ensure jury unanimity in multiple acts cases, the district
court must instruct the jury that it must unanimously agree on a specific act that




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constitutes the crime charged or the State must choose which act it is relying upon for
conviction. State v. Akins, 298 Kan. 592, 618, 315 P.3d 868 (2014).


       Here, the district court gave a separate multiple acts instruction for each charge.
For each of those instructions, the district court used the following language, which
closely tracks the recommended jury instruction in PIK Crim. 4th 68.100: "The State
claims distinct multiple acts which each could separately constitute the crime of _____ as
charged in Count ___. In order for the defendant to be found guilty of _____, as charged
in Count ___, you must unanimously agree upon the same underlying act."


       Aguilar takes issue with the wording of the instruction, arguing the instruction's
"imprecise and misleading language . . . resulted in a directed verdict by the judge." He
focuses on the word "could" in the first sentence of the instruction and contends that it
might have caused jurors to conclude that the evidence presented to support one or all of
the multiple acts already met the elements of the crime charged and that they only needed
to agree on one act to convict the defendant. Aguilar argues that this would amount to a
judicial direction to convict him and would be clear error, entitling him to have his
convictions reversed. The State argues that there was no error and, alternatively, that any
error does not require reversal.


       At least three panels of this court have previously rejected Aguilar's exact
argument. See State v. Billings, No. 109,726, 2014 WL 6772484, at *4-5 (Kan. App.
2014) (unpublished opinion), rev. denied 302 Kan. ___ (July 22, 2015); State v.
Anderson, No. 108,415, 2013 WL 6331600, at *3-8 (Kan. App. 2013) (unpublished
opinion), rev. denied 301 Kan. ___ (January 15, 2015); State v. Sumpter, No. 108,364,
2013 WL 6164520, at *7-8 (Kan. App. 2013) (unpublished opinion), rev. denied 301
Kan. ___ (January 15, 2015).




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       When a jury instruction issue is raised for the first time on appeal or was not
properly preserved with an appropriate objection at trial, the standard of review is
whether the instruction is clearly erroneous. K.S.A. 2015 Supp. 22-3414(3); State v.
Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012). Because Aguilar did not object to the
multiple acts jury instructions at trial, we review the issue for clear error.


       In determining whether an instruction was clearly erroneous, the reviewing court
first determines whether there was any error at all. State v. Sisson, 302 Kan. 123, 129,
351 P.3d 1235 (2015) (citing Williams, 295 Kan. 506, Syl. ¶¶ 4-5). To do this, the court
must consider whether the instruction was legally and factually appropriate. Sisson, 302
Kan. at 129. If the instruction was legally and factually appropriate, then the district court
did not err in giving it. If this court finds error, then it must decide whether it is firmly
convinced the jury would have reached a different verdict had the error not occurred; the
party claiming error has the burden of establishing prejudice. 302 Kan. at 129; State v.
Berney, 51 Kan. App. 2d 719, 722, 353 P.3d 1165 (2015). In making this determination,
the court exercises unlimited review of the record. Sisson, 302 Kan. at 129.


       First, this court must determine whether the multiple acts instruction was legally
appropriate. This court examines "'jury instructions as a whole, without focusing on any
single instruction, in order to determine whether they properly and fairly state the
applicable law or whether it is reasonable to conclude that they could have misled the
jury.'" State v. Hilt, 299 Kan. 176, 184-85, 322 P.3d 367 (2014) (quoting State v.
Williams, 42 Kan. App. 2d 725, Syl. ¶ 1, 216 P.3d 707 [2009], rev. denied 290 Kan. 1104
[2010]).


       To be legally appropriate, jury instructions must at least fairly and accurately state
the applicable law. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). The
Kansas Supreme Court has repeatedly said that "in a multiple acts case the State alleges
several acts, any one of which could constitute the crime charged, and the jury must be


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unanimous as to which act the defendant committed." (Emphasis added.) State v. Soto,
299 Kan. 102, 110, 322 P.3d 334 (2014) (citing State v. Jones, 295 Kan. 1050, Syl. ¶ 3,
288 P.3d 140 [2012]); accord De La Torre, 300 Kan. at 595. In this case, the multiple acts
instructions based on PIK Crim. 4th 68.100 and given for each criminal charge reflect an
accurate statement of the current law on multiple acts.


       Nevertheless, Aguilar contends that the use of "could" in the instructions is
problematic. He notes that one meaning of "can," the present tense form of "could," is to
"'indicate possession of a specified capability or skill.'" Based on this meaning, Aguilar
argues that the jury might have interpreted the instructions to mean that "there is evidence
of multiple acts each of which has the capability or possesses the specific qualities (in
this case elements) to satisfy the crime charged." According to Aguilar, under this
interpretation, the instructions given informed the jury that the evidence of the acts
already satisfied the elements of the crimes charged and that it needed only to agree on
one particular act to convict the defendant. Aguilar argues that this amounts to the district
court directing the jury to find him guilty by leading the jury to think that an element of
the charged crimes had been proven.


       The first problem with Aguilar's argument is that he isolates the word "could"
without considering it in context. Aguilar readily acknowledges that "can" and "could"
are used to indicate possibility or probability. See Webster's Collegiate Dictionary 178
(11th ed. 2014) (noting "can" is used interchangeably with "may" to indicate possibility).
In the instructions, "could" is used to modify "constitute." The phrase "could . . .
constitute" expresses possibility and is analogous to "may constitute." Anderson, 2013
WL 6331600, at *7; see Billings, 2014 WL 6772484, at *4. In other words, the
instructions inform the jury that the evidence of multiple acts may constitute the crime
charged and do not suggest that the evidence certainly or definitively constitutes the
crimes charged. Moreover, the multiple acts instructions begin with: "The State claims
distinct multiple acts . . . ." (Emphasis added.) The use of "claims" indicates that the State


                                              8
is arguing or contending that these multiple acts violate the law; it does not establish that
the acts are true or constitute the charged crimes. See Billings, 2014 WL 6772484, at *4.


       Additionally, Aguilar fails to address other language in the jury instructions that
undermines his interpretation. For each count, the instructions informed the jury that "[t]o
establish this charge, each of the following claims must be proved" and then listed the
required elements that the State must prove. See PIK Crim. 4th 55.121 (aggravated
indecent liberties with a child); PIK Crim. 4th 55.180 (sexual exploitation of a child). The
burden of proof instruction further provided that the jury must find Aguilar not guilty if it
had a reasonable doubt "as to the truth of any of the claims required to be proved by the
State." See PIK Crim. 4th 51.010. These instructions underscore the role of the jury to
evaluate the State's claims and the State's burden to prove its claims.


       Read together, the instructions required the jurors to agree on the specific acts that
the State contended to be crimes and to then test the circumstances of the alleged acts
against the elements of each charge under the reasonable doubt standard. No reasonable
juror would have interpreted the instructions as Aguilar contends. The given multiple acts
instructions fairly and properly stated the law and did not mislead the jury. We find that
the instructions were legally appropriate.


       Next, in determining whether error occurred, this court must consider whether the
instructions were factually appropriate, meaning whether they were supported by the
particular facts of the case at hand. See Plummer, 295 Kan. at 161. In this case, there is
no dispute that the State charged Aguilar with various crimes and presented evidence of
multiple acts allegedly committed by Aguilar, each of which the State contends was
sufficient to support the various crimes charged. Therefore, the multiple acts instructions
were factually appropriate.




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       Given that the multiple acts instructions were legally and factually appropriate, the
district court did not err in giving them.


       Affirmed.




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