                           NOT DESIGNATED FOR PUBLICATION

                                              No. 119,428

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                           RONALD E. THRONE,
                                               Appellant.


                                    MEMORANDUM OPINION

        Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed June 5, 2020.
Affirmed.


        Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.


        Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before HILL, P.J., GREEN and WARNER, JJ.


        PER CURIAM: In May 2016, Ronald Throne spent several hours with T.C., a 15-
year-old girl. Several days later, T.C. told police Throne had exposed himself,
inappropriately touched her, and sent her sexual text messages and a video. The State
charged Throne with multiple crimes, and a jury found him guilty of all charges. Throne
was sentenced to 322 months in prison, followed by lifetime postrelease supervision.
Having carefully reviewed Throne's multiple arguments on appeal, we affirm his
convictions.




                                                    1
                        FACTUAL AND PROCEDURAL BACKGROUND

       On May 26, 2016, a storm rolled through Lawrence, snapping branches and
downing a tree across Arkansas Street. That afternoon, about 20 residents of a trailer park
worked together to clear the debris. Among those who came were T.C., a 15-year-old
girl, and Throne, a maintenance worker at the park. During that day, T.C. and Throne
spent time in a white truck, Throne's brown truck, and Throne's trailer. Their activities
formed the basis of Throne's six criminal charges: two counts of aggravated indecent
liberties with a child; one count of electronic solicitation; one count of indecent liberties
with a child; one count of lewd and lascivious behavior; and one count of promoting
obscenity to minors. Although the parties contest what occurred, they agree on the
sequence of events.


       Because it was raining, Throne let T.C. sit in a white truck owned by the trailer
park. Although the truck was not parked in the center of the clean-up effort—it was four
or five trailers away—a few people were near the truck. In the truck, Throne entered his
phone number into T.C.'s cell phone, which she saved under the name "My New Friend."
According to T.C., Throne asked her age when she entered the white truck; she replied
she was 15. Throne then pulled down his pants and boxers and began masturbating and
kissing T.C. Throne stopped when the trailer park's owner walked to his car, which was
parked nearby. Despite her requests, Throne would not let T.C. leave.


       Throne and T.C. sat in the white truck for 45 minutes to an hour until another
maintenance worker, whose truck was stuck in the mud, asked Throne to help pull the
truck free. T.C. and Throne drove to Throne's trailer to retrieve his brown truck, which
they drove back to the clean-up effort. After driving to retrieve his brown truck, Throne
told T.C. not to tell anyone what had happened.




                                              2
       Once inside Throne's truck, Throne asked T.C. to kiss him. When she refused, he
forced her to kiss him and grabbed her breast by reaching down her shirt. While driving
back to the clean-up effort, Throne stopped the truck, lifted T.C.'s dress, and inserted his
fingers into her vagina. They eventually reached the clean-up effort, and Throne helped
pull the maintenance worker's truck free.


       Later that evening, T.C., her sister, and a friend went over to Throne's trailer to
play video games. While T.C.'s sister and friend played in the front room, Throne
digitally penetrated T.C. again in the kitchen. He stopped when a dog began barking, and
they returned to the front room. Throne also sent several text messages to T.C. that
evening, including "Where is my naked pictures go to my bathroom and take some,"
"Suck me," "I want to take your virginity," and a 39-second video of a man masturbating.
After spending several hours at Throne's trailer, T.C. returned home.


       Several days later, T.C.'s mother called the police after T.C. told her about the
video and text messages. When the responding officer asked if anything else had
occurred, T.C. told him about the other instances. Police subsequently interviewed
Throne. During the interview, Throne stated the touching was consensual, but he denied
digitally penetrating T.C. He also stated he inadvertently sent the messages and video to
her. Finally, Throne believed T.C. was 18 years old; he learned her real age the next day.


       The State charged Throne with five felonies—two counts of aggravated indecent
liberties with a child for the two instances of digital penetration; one count of electronic
solicitation associated with his text messages; one count of indecent liberties with a child;
one count of lewd and lascivious behavior for masturbating in the white truck—and one
misdemeanor for promoting obscenity to minors (sending T.C. the video). At trial,
Throne reiterated he did not digitally penetrate T.C., but he also recanted his interview
statements, denying ever touching her.



                                              3
       The jury convicted Throne on all charges. Because Throne had two previous
convictions for aggravated indecent solicitation of a child, the court found him to be a
persistent sex offender under K.S.A. 2015 Supp. 21-6804(j). The court therefore entered
a controlling sentence of 322 months in prison (determined by his two convictions for
aggravated indecent liberties with a child), followed by lifetime postrelease supervision.


                                         DISCUSSION

   1. Indecent liberties with a child, as defined by K.S.A. 2015 Supp. 21-5506(a)(1),
      is not a lesser included offense of aggravated indecent liberties with a child under
      K.S.A. 2015 Supp. 21-5506(b).

       Throne first claims he should be granted a new trial because the district court did
not properly instruct the jury concerning the law on aggravated indecent liberties with a
child. He asserts the court should have instructed the jury that indecent liberties with a
child under K.S.A. 2015 Supp. 21-5506(a)(1) is a lesser included offense of aggravated
indecent liberties with a child under K.S.A. 2015 Supp. 21-5506(b). At first glance,
Throne's argument has some rhetorical appeal—aggravated indecent liberties with a child
sounds like it is a more serious version of indecent liberties with a child. But Throne's
proposed instruction would have been legally inappropriate; offenses under K.S.A. 2015
Supp. 21-5506(a)(1) are not lesser included offenses of aggravated indecent liberties with
a child under K.S.A. 2015 Supp. 21-5506(b).


       As a preliminary matter, Throne did not ask the district court to provide the lesser
included offense instruction he now advocates. In such circumstances, appellate courts
will only remand for a new trial if the absence of the instruction in question was clearly
erroneous. K.S.A. 2019 Supp. 22-3414(3). "Clearly erroneous" is not a standard of
review; instead, "it supplies a basis for determining if an error requires reversal." State v.
Lewis, 299 Kan. 828, Syl. ¶ 11, 326 P.3d 387 (2014). We apply a two-step process in
determining whether the omission of a jury instruction was clearly erroneous. State v.
Cruz, 297 Kan. 1048, Syl. ¶ 5, 307 P.3d 199 (2013). When the issue is properly before us,


                                               4
we consider first whether the instruction in question is legally and factually appropriate.
See State v. Soto, 301 Kan. 969, Syl. ¶ 9, 349 P.3d 1256 (2015). If the instruction was
appropriate, then we consider whether the failure to provide that instruction was
reversible—that is, whether this court is firmly convinced that the instruction would have
made a difference in the verdict. State v. Haberlein, 296 Kan. 195, Syl. ¶ 1, 290 P.3d 640
(2012), cert. denied 571 U.S. 860 (2013).


       The State argues that we need not reach the merits of Throne's request, claiming
Throne invited the error he now claims is reversible. The State points to an exchange
between the district court and Throne's counsel at trial. Before providing the instructions
to the jury, the court noted Throne had previously "talked about lesser[]" included
offenses and confirmed that he was not requesting a lesser included offense instruction.
Throne's counsel responded, "Yeah."


       It is true that appellate courts generally decline to review challenges by a party
when he or she requested—or invited—the action now claimed to be error. The invited-
error rule only applies, however, when a defendant "actively pursues what is later argued
to be an error." State v. Sasser, 305 Kan. 1231, 1236, 391 P.3d 698 (2017). It does not
apply when a party fails to request an instruction or acquiesces to a ruling, as Throne did
here. See 305 Kan. at 1235-36.


       We thus proceed to consider whether it would have been legally appropriate to
provide the instruction Throne proposes—a question of law over which our review is
unlimited. Soto, 301 Kan. 969, Syl. ¶ 9. At the outset, we note that another panel of our
court has previously held indecent liberties with a minor is not a lesser included offense
of aggravated indecent liberties with a minor. State v. Glover, No. 117,140, 2018 WL
3400762 (Kan. App. 2018) (unpublished opinion), rev. denied 309 Kan. 1351 (2019).
While we are not bound by that panel's decision, we reach the same conclusion.



                                              5
       Under Kansas law, a lesser included offense is a "lesser degree of the same crime"
(K.S.A. 2019 Supp. 21-5109[b][1]) or "a crime where all elements of the lesser crime are
identical to some of the elements of the crime charged" (K.S.A. 2019 Supp. 21-
5109[b][2]). This statute thus provides alternative avenues for analyzing whether a
particular crime is a lesser included offense:


   • Subsection (b)(1) requires courts to consider whether an offense is a "lesser
       degree" of the "same crime." K.S.A. 2019 Supp. 21-5109(b)(1). "Lesser degree"
       requires an examination of whether the grade of the offense is "'more or less
       culpable than another grade.'" State v. Ramirez, 299 Kan. 224, 230, 328 P.3d 1075
       (2014) (quoting 21 Am. Jur. 2d, Criminal Law § 19, p. 132). "Same crime"
       incorporates various factors such as the gravamen of the two crimes, how the
       crimes were treated at common law, and statutory history and structure. See 299
       Kan. at 231-32.


   • Subsection (b)(2) codifies the strict elements test, where courts compare the
       statutory elements of each crime without looking to the underlying facts. State v.
       Alderete, 285 Kan. 359, Syl. ¶ 2, 172 P.3d 27 (2007).


       Neither of these sections applies here. K.S.A. 2019 Supp. 21-5506 criminalizes
indecent liberties with a child, providing in relevant part:


               "(a) Indecent liberties with a child is engaging in any of the following acts with a
       child who is 14 or more years of age but less than 16 years of age:
               (1) Any lewd fondling or touching of the person of either the child or the
               offender, done or submitted to with the intent to arouse or to satisfy the sexual
               desires of either the child or the offender, or both; or
               ....
               "(b) Aggravated indecent liberties with a child is:




                                                     6
                  (1) Sexual intercourse with a child who is 14 or more years of age but less than
                  16 years of age."


"Sexual intercourse" encompasses "any penetration of the female sex organ by a finger,
the male sex organ or any object. Any penetration, however slight, is sufficient to
constitute sexual intercourse." K.S.A. 2019 Supp. 21-5501(a).


       A review of this statute reveals indecent liberties with a child under K.S.A. 2019
Supp. 21-5506(a) does not contain all the elements of aggravated indecent liberties with a
child under K.S.A. 2019 Supp. 21-5506(b)(2). Subsection (a) contains a mens rea
requirement—the intent to arouse or to satisfy the sexual desires—not contained in the
aggravated version. Our Supreme Court has come to an analogous conclusion when
comparing two similar statutes applied to children younger than 14 years old. State v.
Belcher, 269 Kan. 2, 7-8, 4 P.3d 1137 (2000) (aggravated indecent liberties is not a lesser
included offense of rape; indecent liberties contains additional elements that rape does
not). Thus, indecent liberties with a child is not a lesser included offense under the strict-
elements test. See K.S.A. 2019 Supp. 21-5109(b)(2).


       Nor is indecent liberties with a child a lesser degree of the same crime as
aggravated indecent liberties with a child. See K.S.A. 2019 Supp. 21-5109(b)(1). First,
the gravamen of the two offenses are different. Indecent liberties with a child under
K.S.A. 2019 Supp. 21-5506(a)(1) prohibits touching while the aggravated version under
K.S.A. 2019 Supp. 21-5506(b)(1) criminalizes vaginal penetration. These are markedly
different acts.


       And the organization of sex crimes in Article 55 of the Kansas Statutes does not
indicate that indecent liberties is a lesser included offense of its aggravated counterpart.
Sex offenses are classified based on the sexual act and the victim's age. There are three
types of acts: touching; sexual intercourse; and sodomy. See K.S.A. 2019 Supp. 21-


                                                      7
5501(a)-(b). Similarly, victims are divided into three groups by age: victims less than 14
years old; 14- or 15-year-old victims; and victims 16 years old or older.


       Touching and sexual intercourse with a 14- or 15-year-old victim are criminalized
in the same statute as non-aggravated and aggravated indecent liberties with a child,
respectively. K.S.A. 2019 Supp. 21-5506(a)(1), (b)(1). But other age groups are
addressed in different statutes. When the victim is younger than 14 years old, touching
and sexual intercourse are criminalized as aggravated indecent liberties and rape,
respectively. K.S.A. 2019 Supp. 21-5506(b)(3)(A); K.S.A. 2019 Supp. 21-5503(a)(3).
When the victim is 16 years old or older, touching and sexual intercourse are
criminalized as sexual battery and rape, respectively. K.S.A. 2019 Supp. 21-5505(a)-(b);
K.S.A. 2019 Supp. 21-5503(a)(1)-(2) (describing when a victim succumbs under certain
circumstances). And sodomy, regardless of the victim's age, is classified in its own
statute. K.S.A. 2019 Supp. 21-5504 (a)(3), (b)(1), (b)(3) (14- or 15-year-old victims,
victim less than 14 years old, and when victims succumb under certain circumstances).


       As this discussion indicates, a non-aggravated crime is not always a lesser degree
of the aggravated version, even when both are placed in the same statute. Rather, these
crimes are classified in a number of ways, including the victim's age and the type of
sexual activity. In such circumstances, it makes more sense to determine whether one
crime is a lesser included offense of another by comparing the elements of each crime
under K.S.A. 2019 Supp. 21-5109(b)(1).


       Because indecent liberties with a child is not a lesser included offense of
aggravated indecent liberties with a child, it would have been legally inappropriate to
provide a jury instruction for indecent liberties with a child. The district court did not err
when it did not provide that instruction to the jury.




                                               8
   2. The evidence is sufficient to support Throne's conviction for lewd and lascivious
      behavior.

       Throne next challenges his conviction for lewd and lascivious behavior, claiming
the State did not present sufficient evidence to convict him of that offense.


       Courts entrust juries with the important work of hearing the evidence and
determining whether, in a criminal case, the State has met its burden of proving beyond a
reasonable doubt that the defendant committed the charged offense. To carry out this
critical role, jurors—who have heard the witnesses' testimony and observed their
demeanor—assess witnesses' credibility and weigh the evidence presented. Appellate
judges, who were not present at trial, give deference to these observations. For this
reason, when reviewing sufficiency of the evidence, we will uphold a conviction if we are
convinced, after reviewing the evidence in a light most favorable to the State, "a rational
factfinder could have found the defendant guilty beyond a reasonable doubt." State v.
Chandler, 307 Kan. 657, Syl. ¶ 2, 414 P.3d 713 (2018). We do "not reweigh evidence,
resolve evidentiary conflicts, or reassess witness credibility." 307 Kan. 657, Syl. ¶ 2.


       The State charged Throne with lewd and lascivious behavior under K.S.A. 2015
Supp. 21-5513(a)(2), associated with his conduct of exposing himself and masturbating
while in the white maintenance truck. To prove Throne engaged in this conduct, the State
was required to show he "publicly expos[ed] a sex organ . . . with intent to arouse or
gratify the sexual desires of the offender or another." K.S.A. 2015 Supp. 21-5513(a)(2).


       Throne claims the State failed to prove he "publicly" exposed himself, relying on
dictionary definitions defining "publicly" as "[i]n a public or open manner or place" and
"public" as "[o]f, relating to, or affecting a population or a community as a whole." Since
he exposed himself only to T.C. and the truck was removed from those engaged in the
clean-up effort, he claims his exposure did not involve the community as a whole or
contemplate a broader audience than T.C.


                                              9
       The State first argues the mere fact that Throne exposed himself to T.C. was
sufficient to support a lewd and lascivious behavior conviction. That might be true if
Throne were charged with an alternate avenue of defining lewd and lascivious behavior
under K.S.A. 2015 Supp. 21-5513(a)(2)—exposure in the presence of a nonconsenting
person other than a spouse. See State v. Sawyer, No. 101,062, 2009 WL 4639488, at *1
(Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1102 (2010). But Throne
correctly points out that the district court did not instruct the jury on that crime; it only
instructed on public exposure. We must therefore consider whether the evidence
presented at trial was sufficient to demonstrate Throne "publicly expos[ed]" himself
while he was in the maintenance truck.


       In addressing this question, both parties rely heavily on this court's interpretation
of "publicly" in State v. Albin, No. 114,712, 2016 WL 6651871 (Kan. App. 2016)
(unpublished opinion). In Albin, the defendant, a truck driver, pulled his commercial
truck into an office parking lot; there were no pedestrians in the parking lot, and the
defendant parked at least 40 feet from the nearest car. While the defendant masturbated in
the truck, a security guard, using one of the office's security cameras, zoomed in on the
truck's windshield. Although the footage showed nothing obscene, the guard informed the
police, and the defendant was arrested. He was later found guilty of lewd and lascivious
behavior at a bench trial.


       This court reversed. Relying on the definition of "public" in Black's Law
Dictionary, which reads "'[t]he people of a country or community as a whole,'" the court
rejected the argument that "publicly" means "in a public place"; the legislature had
previously removed "in a public place" language from the statute. 2016 WL 6651871, at
*3 (quoting Black's Law Dictionary 1422 [10th ed. 2014]). Rather, the statute "requires
foreseeability that one's acts may be seen by another." 2016 WL 6651871, at *4. This
analysis is fact-dependent; it turns on the time, place, and manner of the act. 2016 WL


                                               10
6651871, at *5. Because the defendant was parked away from other cars (and in a
heightened truck), no pedestrians were in the parking lot at the time, and even the
security guard could not see clearly into the truck, the Albin court found the defendant did
not publicly expose himself. 2016 WL 6651871, at *4-5.


       We find Albin's discussion of the fact-specific nature of "public exposure"
persuasive. When jurors are instructed that an offense requires a public act, they are
called on to listen to the evidence, consider the facts, and determine whether, in their
practical experience, the State proved public conduct. Here, the State presented evidence
from which the jury could draw that conclusion. Throne masturbated in a maintenance
truck in the midst of a clean-up effort when multiple people were nearby. The truck was
parked near other cars, requiring others—including another maintenance worker—to pass
by the truck; Throne covered himself only after the trailer park's owner went to his
nearby car. It was reasonably foreseeable that a person could have seen Throne while he
was masturbating in the truck. Under these facts, there was sufficient evidence presented
to support Throne's conviction for lewd and lascivious behavior.


   3. Sufficient evidence supports Throne's conviction for promoting obscenity.

       In addition to his five felony convictions, the jury found Throne guilty of
promoting obscenity to minors, a misdemeanor. K.S.A. 2015 Supp. 21-6401 defines
promoting obscenity as recklessly "[m]anufacturing, mailing, transmitting, publishing,
distributing, presenting, exhibiting or advertising any obscene material or obscene
device." K.S.A. 2015 Supp. 21-6401(a)(1). The statute defines promoting obscenity to
minors as "promoting obscenity, as defined in subsection (a), where a recipient of the
obscene material or obscene device . . . is a child under the age of 18 years." K.S.A. 2015
Supp. 21-6401(b). The statute indicates "'material' means any tangible thing which is
capable of being used or adapted to arouse interest, whether through the medium of
reading, observation, sound or other manner." K.S.A. 2015 Supp. 21-6401(f)(2).



                                             11
       The State asserted Throne had transmitted obscene material within the meaning of
K.S.A. 2015 Supp. 21-6401(a)(1) and (b) when he sent T.C. the video of a person
masturbating. On appeal, Throne brings two challenges to the sufficiency of the evidence
for this conviction: Throne first contends the statute's prohibition of transmitting "any
obscene material or obscene device" creates alternative means of promoting obscenity.
Alternatively, he argues that the statute only prohibits sending "tangible thing[s]," and the
video he sent T.C. was not "tangible," but digital.


       3.1.   K.S.A. 2015 Supp. 21-6401(a)(1) does not create alternative means of
              promoting obscenity to minors.

       The court instructed the jury that, to find Throne guilty of promoting obscenity to
a minor, it must find "[t]he defendant recklessly transmitted obscene material or an
obscene device." Throne argues that this language, which substantially mirrors K.S.A.
2015 Supp. 21-6401(a)(1), creates alternative means of promoting obscenity to minors.
According to Throne, this language required the State to submit evidence that he
transmitted both obscene material and an obscene device; otherwise, we have no way of
knowing whether a jury unanimously convicted him of the crime charged. We do not find
Throne's argument persuasive.


       A jury must unanimously agree the defendant committed the charged crime before
it can find a defendant guilty of that offense. See K.S.A. 22-3421; State v. Wright, 290
Kan. 194, Syl. ¶ 1, 224 P.3d 1159 (2010) ("Jury unanimity on guilt in a criminal case is
statutorily required in Kansas."). This is straightforward when a crime can only be
committed one way. Some crimes, however, can be committed in multiple ways—that is,
there are alternative means of committing the crime. See State v. Brown, 295 Kan. 181,
192, 284 P.3d 977 (2012). For alternative-means crimes, "[u]nanimity is not required . . .
as to the means by which the crime was committed so long as substantial evidence
supports each alternative means." 295 Kan. 181, Syl. ¶ 1.



                                             12
       Yet not every statute that contains different methods of committing an offense
gives rise to an alternative-means crime. While statutes usually create alternative means
by using "or," courts must examine why the legislature used the disjunctive to determine
whether alternative means exist. 295 Kan. 181, Syl. ¶¶ 4, 7. Language creating alternative
means generally addresses "essential, distinct elements" of mens rea, the act requirement,
or causation. 295 Kan. at 194. Language "describing a material element or a factual
circumstance that would prove the crime," however, does not create alternative means of
committing that crime; instead, it provides options for committing a crime within a
means, which do not require jury unanimity. 295 Kan. at 194, 196-97.


       Courts consider a number of other indicators to help differentiate alternative
means from options within a means. For example, courts have observed that the
legislature generally places alternative-means provisions in different subsections of the
same statute. 295 Kan. at 196. But definitional provisions that describe a material element
of the crime (not the crime itself) generally do not create alternative means. 295 Kan. at
198. Likewise, provisions describing "factual circumstances that may prove the crime"
generally create options within a means of committing the crime. 295 Kan. at 199.


       Whether a statute creates alternative means is a question of statutory interpretation
reviewed de novo; since it involves the sufficiency of the evidence, an alternative-means
challenge may be raised for the first time on appeal. State v. Eddy, 299 Kan. 29, 32-33,
321 P.3d 12 (2014).


       Applying these principles here, we conclude K.S.A. 2015 Supp. 21-6401(a)(1)'s
"obscene material or obscene device" language creates options within a means, not an
alternative means of committing that crime. The language does not describe an essential,
distinct element of the offense. The statute requires a reckless intent; the requisite act is
any of the eight verbs listed in K.S.A. 2015 Supp. 21-6401(a)(1). The statute's reference
to "any obscene material or obscene device" describes a factual circumstance that would


                                              13
result in criminal liability. Thus, obscene "material" and "device" are options within a
means of committing that crime.


       3.2.   The State presented sufficient evidence that Throne transmitted a tangible
              thing to T.C., as required by K.S.A. 2015 Supp. 21-6401(a)(1) and (f)(2).

       Throne also argues the State failed to present any evidence that he transmitted
"any obscene material or obscene device" to T.C. The State acknowledges it did not
present evidence that Throne sent T.C. an obscene device. But it argues the digital video
Throne sent to T.C.'s phone was obscene material within the meaning of K.S.A. 2015
Supp. 21-6401. Our resolution of this question turns on our interpretation of this statute—
we must determine what the legislature intended to encompass when it defined "material"
as "any tangible thing" in K.S.A. 2015 Supp. 21-6401(f)(2).


       In general, this court will reverse a conviction for insufficient evidence only when
we conclude, viewing the evidence in the light most favorable to the State, that a rational
jury could not have found the defendant guilty beyond a reasonable doubt. See Chandler,
307 Kan. 657, Syl. ¶ 2. But our review takes on a different dimension when, as here, a
defendant's claim turns on a question of statutory interpretation. Interpretation of a statute
is a question of law over which appellate courts have unlimited review. State v. Keel, 302
Kan. 560, Syl. ¶ 4, 357 P.3d 251 (2015).


       The aim of statutory interpretation is to determine the legislature's intent based on
the language it employed. 302 Kan. 560, Syl. ¶ 5. When a statute's text is plain and
unambiguous, courts apply the language as written and do not look to canons of
construction or legislative history. We give common words their common meanings and
neither add language nor read out statutory requirements. 302 Kan. 560, Syl. ¶ 6.


       When a statute's language is ambiguous, courts employ various tools of
construction to ascertain the legislature's intent. For example, courts consider the


                                             14
uncertain language within the greater context of the entire statute's text, or the text of an
entire act, as a whole, with an eye toward reading provisions in workable harmony, if
possible. 302 Kan. 560, Syl. ¶ 7. We also presume the legislature does not enact
meaningless legislation or employ meaningless language. State v. Frierson, 298 Kan.
1005, 1013, 319 P.3d 515 (2014). As a corollary of this principle, courts presume that by
choosing to include certain language in statutes, the legislature necessarily decided not to
include other alternative text. See State v. Martin, 285 Kan. 735, 741-42, 175 P.3d 832
(2008) (discussing expressio unius est exclusio alterius: the inclusion of one thing implies
the exclusion of another).


       These principles guide our interpretation of K.S.A. 2015 Supp. 21-6401. The
legislature, in enacting this statute, decided to define "material" as "any tangible thing."
K.S.A. 2015 Supp. 21-6401(f)(2). The question before us is whether this definition
includes digital information, such as the video transmitted by Throne.


       As the parties note, "tangible" has several meanings. Black's Law Dictionary
defines "tangible" as (1) "Having or possessing physical form; CORPOREAL";
(2) "Capable of being touched and seen; perceptible to the touch; capable of being
possessed or realized"; or (3) "Capable of being understood by the mind." Black's Law
Dictionary 1757 (11th ed. 2019). Each of these definitions emphasizes a different aspect
of what it could mean to be "tangible." The first addresses an item's physicality; the
second its perceivability; and the third its comprehensibility. See also People v.
Aleynikov, 31 N.Y.3d 383, 398, 104 N.E.3d 687 (2018) (discussing various definitions of
tangible as meaning "real," "substantial," or "objective").


       K.S.A. 2015 Supp. 21-6401(f)(2) does not expressly indicate whether the
legislature intended for any or all of these definitions of tangible to apply, but our canons
of construction help discern that legislative intent. The Kansas Legislature first included
"tangible" in its definition of material 50 years ago when K.S.A. 21-6401's predecessor


                                              15
statute was enacted. L. 1969, ch. 180, § 21-4301(2)(b). At that time, long before the
explosion of digital information and technologies we are accustomed to today, people
encountered obscene materials through different forms of media. But when the legislature
re-codified the Kansas criminal code in 2010—in the age of wireless Internet, streaming
videos, and smartphones—it continued to include "tangible" in defining material subject
to the statute. See L. 2010, ch. 136, § 212. In light of this history, we reject the notion that
"tangible" is merely a holdover descriptor from an era predating modern technology.


       Instead, the language surrounding "tangible" within K.S.A. 2015 Supp. 21-
6401(f)(2) demonstrates the legislature intended the statute to be read broadly. The
statute encompasses "any tangible thing" that arouses interest "through the medium of
reading, observation, sound or other manner." (Emphases added.) K.S.A. 2015 Supp. 21-
6401(f)(2). Its predecessor, K.S.A. 1961 Supp. 21-1102(a), applied to "any book,
magazine, newspaper, writing, pamphlet, ballad, printed paper, print, picture, drawing,
photograph, publication or other thing" containing "lewd or lascivious language, . . .
prints, pictures, figures or descriptions." While this list is extensive, K.S.A 2015 Supp.
21-6401(f)(2) further expanded its reach by defining material in terms of how it may be
perceived rather than through an inventory of covered items.


       A panel of this court recently concluded that digital photographs and videos sent
via Snapchat fell within the definition of obscene "material" under K.S.A. 2015 Supp. 21-
6401(f)(2). See State v. Johnson, 56 Kan. App. 2d 1293, 1316, 447 P.3d 1010 (2019),
rev. denied 311 Kan. __ (February 27, 2020). In Johnson, the court rejected the argument
that "tangible" refers only to "three-dimensional physicality or touchability." 56 Kan.
App. 2d at 1314. Instead, the court similarly reasoned that, reading K.S.A. 2015 Supp.
21-6401 as a whole, the legislature intended to criminalize the sending of digital
information because it included "transmit[ting]" obscene material as a means of
promoting obscenity under K.S.A. 2015 Supp. 21-6401(a)(1). 56 Kan. App. 2d at 1316.



                                              16
       Other courts across the country have similarly held in multiple contexts that
"tangible" items include digital media. See, e.g., Aleynikov, 31 N.Y.3d at 386 (concluding
that tangible information can include digital material and contrasting this information
with intangible ideas); State v. Stone, 137 S.W.3d 167, 176 (Tex. App. 2004) (concluding
digital photos were "tangible" because they could be viewed, i.e. sensed visually);
Dynamic Digital Design, Inc. v. Commissioner of Revenue, No. 7380-R, 2004 WL 97645,
at *3 (Minn. Tax 2004) (unpublished opinion) (concluding digital files fell within the
definition of "tangible personal property"); see also American Multi-Cinema, Inc. v. City
of Aurora, No. 18CA2165, 2020 WL 34677, at *1 (Colo. App. 2020) (unpublished
opinion) (noting AMC acknowledged on appeal that digital movie files "are tangible
personal property").


       While we are not bound by Johnson's reasoning, we come to a similar conclusion.
The breadth of the legislature's definition of "material" in K.S.A. 2015 Supp. 21-
6401(f)(2), its inclusion of various methods of perception beyond touch (such as
"observation" and "sound"), and its recognition and inclusion of transmission as a method
of sending obscene material all demonstrate it did not intend "tangible" to be read
narrowly—as capable of being physically touched—but broadly. We conclude the
statute's "tangible" language encompasses not only physical objects but something
substantial or real—capable of being perceived—as opposed to an intangible idea or
thought. Digital media fall into this definition; though digital files cannot be "touched" in
a tactile sense, they can certainly be perceived through sight and sound. Thus, digital
media are "tangible" things within the meaning of K.S.A. 2015 Supp. 21-6401(f)(2).


       Based on this discussion, there can be no question the video Throne sent to T.C.
falls within the reach of K.S.A. 2015 Supp. 21-6401. And Throne does not contend the
evidence was in any other way deficient to support his conviction. Sufficient evidence
was presented at trial to support Throne's conviction for promoting obscenity to a minor.



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   4. The prosecutor did not commit reversible error during closing argument.

       Throne claims the State committed prosecutorial error during its closing argument
by impermissibly shifting the burden of proof to him when the prosecutor commented on
Throne's lack of corroborating witnesses. But even if we were to find that the State
exceeded its permissible latitude, this error would not be reversible.


       During his closing argument, Throne noted the State did not call several people—
T.C.'s sister, friend, Throne's girlfriend, and a friend of his girlfriend—who were present
at Throne's trailer around the time when T.C. claimed the second digital penetration
occurred. Throne asserted that without these other witnesses' testimony, the jury was left
with only T.C.'s explanation of the event—an account Throne argued was unreliable in
light of various inconstancies in T.C.'s conduct and statements. In its rebuttal, the State
made the following argument:


               "[The State]: Now, the defense wants you to look at why didn't you hear from all
       these other people? Ladies and gentlemen, what would those other people have told you?
               "The State has subpoena power, but so does the defense, and the defense called
       witnesses. The defense called the defendant. If those individuals had something to say
       that those acts didn't occur, would the defense have called them?"


       Throne objected to this line of argument, asserting it was the State—not Throne—
who bore the burden of proof. After the court sustained Throne's objection, the prosecutor
continued with the State's rebuttal:


               "[The State]: Ladies and gentlemen, those witnesses would have told you one of
       two things, if they testified: They would have told you what was consistent with what—
       [T.C.'s] statement, and the defendant's statement, that no one saw any of this that went
       on. Or they could have told you that they saw it occurred.
               "So looking at the evidence, the evidence presented, did the State, using that
       evidence, prove its case beyond a reasonable doubt? That is your job, and that is what
       you are to do in this case."


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       On appeal, Throne claims this argument was improper in two respects. First, he
again asserts that the prosecutor attempted to shift the burden of proof to Throne by
implying he had an obligation to present his own evidence. Second, he argues the State
impermissibly argued facts not in evidence by surmising the uncalled witnesses could
only have testified about two issues—whether they did or did not see the digital
penetration in Throne's trailer. Rather, Throne reasons, they could have offered other
explanations such as T.C. never went into the kitchen. Accord State v. Stimec, 297 Kan.
126, 128, 298 P.3d 354 (2013) (prosecutor cannot comment on facts not in evidence).


       The Due Process Clause of the Fourteenth Amendment to the United States
Constitution guarantees a right to a fair trial. State v. Sherman, 305 Kan. 88, 98, 378 P.3d
1060 (2016). To protect that right, the Fourteenth Amendment imposes certain
restrictions on prosecutors. See 305 Kan. at 98. A prosecutor commits prosecutorial error
by exceeding those limitations. 305 Kan. at 109. When sufficiently severe, these errors
render a trial unfair, depriving a criminal defendant of his or her right, and warrant
reversal of the defendant's convictions. See 305 Kan. at 99.


       An appellate court's review of a claim of prosecutorial error involves a two-step
process: consideration of error and consideration of prejudice. 305 Kan. at 109. In
considering whether error has occurred, "the appellate court must decide whether the
prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to
conduct the State's case and attempt to obtain a conviction in a manner that does not
offend the defendant's constitutional right to a fair trial." 305 Kan. at 109. If the appellate
court finds error, then "the appellate court must next determine whether the error
prejudiced the defendant's due process rights to a fair trial" using the constitutional
harmless error inquiry. 305 Kan. at 109.




                                              19
       A prosecutor may not shift the burden of proof to the defendant. State v. Pribble,
304 Kan. 824, Syl. ¶ 6, 375 P.3d 966 (2016). But when a defendant attacks the credibility
of the State's witnesses by highlighting the State's failure to call corroborating witnesses,
the State may respond by noting the defendant's ability to also call witnesses. State v.
Williams, 299 Kan. 911, 939, 329 P.3d 400 (2014); State v. Peppers, 294 Kan. 377, 397,
276 P.3d 148 (2012). "'Such a comment, refuting a purported inference, is not an
impermissible shifting of the burden of proof.'" Williams, 299 Kan. at 940 (quoting State
v. Naputi, 293 Kan. 55, 64, 260 P.3d 86 [2011]); see also Pribble, 304 Kan. at 838 (no
improper burden shifting by commenting on the defendant's failure to call witnesses
corroborating his alibi). To determine whether a shift occurs, courts may note whether the
State was responding to the defense counsel's argument. Peppers, 294 Kan. at 397.


       This case is similar to Williams. During closing arguments in Williams, defense
counsel argued the State failed to provide witnesses corroborating the victim's statement;
in response, the State noted the defendant could also subpoena witnesses. The Supreme
Court held the State's response did not shift the burden of proof; the State responded to
explain steps law enforcement had taken to identify those witnesses, not to invoke the
defense to disprove the crime's occurrence. 299 Kan. at 941. As in Williams, Throne
highlighted the absence of corroborating witnesses to attack T.C.'s credibility. Under
Williams, the State could respond to this argument by noting Throne also had the power
to subpoena witnesses.


       The State's further comments, however, are on less solid ground. To rebut
Throne's argument, the State only needed to highlight his subpoena power. But the State
went further, implying Throne would have called witnesses had they been beneficial.
This implication, compounded by the State's speculative account as to what information
the witnesses may have provided had they been called, gives us pause. While it is true
that courts permit the State wide latitude in crafting closing arguments, the State's
arguments at least muddied the question as to the burden of proof. At the same time, the


                                             20
prosecutor immediately sought to clarify this issue, telling the jury that its role was to
"look[] at the evidence, the evidence presented" and ask, "did the State, using that
evidence, prove its case beyond a reasonable doubt?"


       This is a close case. But even if we were to decide that the prosecutor's comments
exceeded the bounds of permissible argument, we would not find that error to require
reversal of Throne's convictions. We note that both the State and the district court
tempered any jury misunderstanding about the burden of proof. The State reiterated that
standard multiple times, before and after making the challenged comments. And the court
instructed the jury that the State must prove guilt beyond a reasonable doubt. These steps,
viewed in light of the evidence submitted at trial—including independent corroborating
evidence of T.C.'s account through Throne's multiple explicit communications and
Throne's own admissions to the police around the time of the incident in question—lead
us to conclude the State has sufficiently demonstrated that there is no reasonable
possibility that the alleged prosecutorial error contributed to the jury's verdict in this case.
See Sherman, 305 Kan. at 109.


   5. Throne has not demonstrated cumulative error.

       In his final argument on appeal, Throne argues that even if his alleged errors do
not individually require reversal of his convictions, the accumulation of any deficiencies
deprived him of a fair trial. We disagree. Rather, the only potential error Throne has
identified concerns the prosecutor's statements during closing argument. But even if those
comments crossed the bounds of permissible argument, they were not reversible. Kansas
courts have long recognized that a defendant is not entitled to a perfect trial, but to a fair
one. Cruz, 297 Kan. at 1075. Throne has not shown he was deprived of this right.


       Affirmed.




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