1

No. 122,118

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

TRISTAN T. LETTERMAN,

Appellant.

SYLLABUS BY THE COURT

1. 

When appellate courts interpret statutes, their primary aim is to give effect to the 

legislature's intent, articulated through the language the legislature has chosen. Courts 

therefore give common words their ordinary meanings. When a statute is plain and 

unambiguous, an appellate court does not speculate as to the legislative intent behind it 

and will not read into the statute something not readily found in it.

2.

Only when the meaning of a statute's text is unclear do courts consider other 

interpretive tools, such as legislative history or canons of statutory construction.

3.

The absence of a definition for a common word within a statute does not 

necessarily render the statute ambiguous.

4.

K.S.A. 2020 Supp. 21-5513(a)(2)'s prohibition of "publicly exposing a sex organ"

is not ambiguous. Consistent with the common meaning of "publicly" and with human 
2

experience, K.S.A. 2020 Supp. 21-5513(a)(2) prohibits exposing oneself in a manner 

observable by or in a place accessible to the public.

5.

The Sixth and Fourteenth Amendments to the United States Constitution require 

that any fact, other than a prior conviction, that increases a crime's penalty beyond the 

statutory maximum must be submitted and proved to a jury beyond a reasonable doubt. 

Findings that result in the extension of postrelease supervision increase the duration of a 

person's sentence and are thus subject to these same constitutional limitations.

6.

A Sixth Amendment violation based on Apprendi v. New Jersey, 530 U.S. 466, 

120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), is not a structural error and is therefore 

subject to a harmless-error analysis.

Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed May 28, 2021. 

Affirmed.

Meryl Carver-Allmond, of Capital Appellate Defender Office, for appellant. 

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before ATCHESON, P.J., GARDNER and WARNER, JJ.

WARNER, J.: A jury convicted Tristan Letterman of lewd and lascivious behavior 

after a woman and her children observed him masturbating in the alley outside her 

backyard's chain-link fence. At sentencing, the district court imposed 60 months' 

postrelease supervision, instead of the standard 12-month term, based on its 

determination that Letterman committed a sexually motivated offense—that is, he 
3

exposed himself for his own sexual gratification. Letterman now appeals, challenging the 

sufficiency of the evidence and the constitutionality of his extended 60-month 

postrelease-supervision term. After carefully considering the record and the parties' legal 

arguments, we affirm Letterman's conviction and sentence. 

FACTUAL AND PROCEDURAL BACKGROUND

The events giving rise to Letterman's conviction took place behind the house 

where D.H. and her family lived. The house's driveway ran from the street and through 

the side yard before wrapping around the back of the house, where the garage was 

located. A privacy fence ran along the side yard, while a chain-link fence separated the 

backyard from a nearby alley. A tree grew in the alley near where the two fences met. 

On an August afternoon in 2018, D.H. pulled into the driveway with her three 

children, who were between the ages of five and seven years old. As she did so, she saw a 

man sitting against the tree outside the chain-link fence, facing her house; his pants were

halfway down, and he was masturbating with one hand and holding a syringe in the other. 

D.H. took her kids inside the house and called 911. 

As they awaited a police response, several adult members of D.H.'s family told the 

man to leave. He left after 15 minutes but returned about an hour later, walking down the 

sidewalk in front of the house. D.H. again called 911 and began following the man; she 

eventually flagged down Wichita police officers on bicycle patrol, explained what 

happened, and described the man and the direction he was walking.

Police arrested Letterman, who matched D.H.'s description, a few blocks away 

from her house. Officers searched Letterman and found various drug-related items, 

including syringes, pipes, and a small plastic bag. They also found a pair of girl's 
4

underwear and a stuffed animal, both of which belonged to D.H.'s daughter. Officers 

discovered trash and a blanket under the tree behind D.H.'s house. 

Based on this evidence, a jury found Letterman guilty of lewd and lascivious 

behavior, a felony because it occurred in the presence of D.H.'s young children. The

district court imposed a nine-month prison sentence for the offense. The court also found 

that Letterman's conviction was sexually motivated—that is, it was done for his own 

sexual gratification—and thus imposed 60 months of postrelease supervision instead of 

the presumptive 12-month supervision term. 

DISCUSSION

On appeal, Letterman challenges aspects of his conviction and his sentence. He 

argues that the evidence was not sufficient to support his conviction for lewd and 

lascivious behavior, as that offense requires a showing that Letterman publicly exposed 

himself—a phrase Letterman interprets to require exposure in a public place. And he 

asserts that the district court improperly engaged in judicial fact-finding when it imposed

the extended postrelease-supervision term. We first address the evidence supporting 

Letterman's conviction and then turn to the sentencing question.

1. Letterman's conviction was supported by sufficient evidence.

When a defendant challenges the sufficiency of the evidence to support his or her 

conviction, an appellate court reviews the evidence "in a light most favorable to the 

State" to ascertain whether a rational fact-finder "could have found the defendant guilty 

beyond a reasonable doubt." State v. Rosa, 304 Kan. 429, Syl. ¶ 1, 371 P.3d 915 (2016). 

Practically speaking, this standard requires appellate courts to affirm a conviction on 

sufficiency grounds as long as there is some evidence in the record to support each 

element of the offense. See State v. Dobbs, 297 Kan. 1225, 1238, 308 P.3d 1258 (2013). 

Because we were not present at trial to observe witnesses' demeanor or hear their 
5

testimony, we cannot reweigh the evidence, resolve evidentiary conflicts, or reassess 

witness credibility. State v. Keel, 302 Kan. 560, 566, 357 P.3d 251 (2015). 

The evidence regarding Letterman's conduct was largely undisputed—D.H. and 

her children saw him masturbating in the alley on the other side of the chain-link fence 

behind their house. Letterman does not quibble with D.H.'s account of these events.

Instead, he frames his sufficiency challenge as an issue of statutory interpretation, 

arguing that the evidence presented at trial did not show that he "publicly exposed" 

himself within the meaning of Kansas law. 

Letterman was convicted for a violation of K.S.A. 2020 Supp. 21-5513(a)(2), 

which prohibits "publicly exposing a sex organ or exposing a sex organ in the presence of 

a person who is not the spouse of the offender and who has not consented thereto, with 

intent to arouse or gratify the sexual desires of the offender or another." This section 

includes two types of lewd and lascivious behavior: behavior involving public exposure 

and behavior involving exposure to a nonspouse without that person's consent. Consistent 

with the charges filed by the State, the district court here instructed the jury only as to the 

public-exposure behavior—that the State was required to prove that Letterman "publicly 

exposed his sex organ with the intent to arouse or gratify the sexual desires of the 

defendant or another." 

Letterman points out that K.S.A. 2020 Supp. 21-5513(a)(2) does not define the 

term "publicly." And he argues that the phrase publicly exposing could involve multiple 

types of conduct, such as when the exposure occurs in a public location or when the 

circumstances give rise to "foreseeability that one's acts may be seen by another." See 

State v. Albin, No. 114,712, 2016 WL 6651871, at *4 (Kan. App. 2016) (unpublished 

opinion). Given the various behaviors that could be considered "public," Letterman

argues that the statute is ambiguous and that such ambiguity must be resolved in his 
6

favor. See State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016) (rule of lenity 

indicates that ambiguous criminal statutes should be construed in favor of the accused).

When appellate courts interpret statutes, our primary aim is to give effect to the 

legislature's intent, as articulated through the language the legislature has chosen. Keel, 

302 Kan. 560, Syl. ¶ 5. Our analysis therefore begins with the statutory language, giving 

common words their ordinary meanings. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 

1135 (2016). "'When a statute is plain and unambiguous, an appellate court does not

speculate as to the legislative intent behind it and will not read into the statute something 

not readily found in it.'" 304 Kan. at 409. Instead, we apply the plain language as it is 

written. Only when the text's meaning is unclear do we consider other interpretive tools, 

such as legislative history or canons of statutory construction (such as the rule of lenity 

Letterman references). See 304 Kan. at 409; see also State v. Williams, 303 Kan. 750, 

760, 368 P.3d 1065 (2016) (rule of lenity only becomes relevant when there is reasonable 

doubt as to a statute's meaning). 

It is true, as Letterman indicates, that K.S.A. 2020 Supp. 21-5513(a)(2) does not 

explicitly define what it means to "publicly" expose a person's sex organ. But the absence 

of a definition does not necessarily render the statute ambiguous. Indeed, the vast 

majority of words and phrases used in statutes are not accompanied by statutory 

definitions, and definitions are often unnecessary when words are given their common 

and ordinary meanings. We are thus left to consider whether the statute is unclear when it 

criminalizes the act of "publicly exposing" oneself. It is not.

As a starting point, "public" is commonly understood to mean "exposed to general 

view" or "open." Merriam-Webster Online Dictionary, at https://www.merriamwebster.com/dictionary/public. When an act is done "publicly," it is done "in a manner 

observable by or in a place accessible to the public." Merriam-Webster Online 

Dictionary, at https://www.merriam-webster.com/dictionary/publicly. Public acts are thus 
7

differentiated from private conduct, which is "intended for or restricted to the use of a 

particular" audience; when something occurs "in private," it by definition does not occur 

"openly or in public." See Merriam-Webster Online Dictionary, at https://www.merriamwebster.com/dictionary/private. 

Though we did not directly quote these common definitions, this court recently 

discussed this public-versus-private distinction in City of Wichita v. Trotter, 58 Kan. App. 

2d 781, 475 P.3d 365 (2020), rev. denied 312 Kan. 890 (2021). Trotter involved a 

violation of a Wichita ordinance requiring a license to run an entertainment establishment 

that was "open to the public." 58 Kan. App. 2d at 802. While the Wichita Municipal Code 

included definitions of various terms, the Code—like K.S.A. 2020 Supp. 21-5513(a)(2)—

did not define what was meant by "public." 58 Kan. App. 2d at 805. But we nevertheless 

found, consistent with the common meaning of that term, that the Code's reference to 

"public" events intended to distinguish conduct requiring a license from private conduct, 

like family gatherings in a person's home. And we underscored that jurors commonly 

understand what it means for conduct to be public because "whether something is public 

or private tends to be a question of human experience." 58 Kan. App. 2d at 805. 

Other decisions of this court have similarly concluded that statutory references to a 

public act, such as the public exposure involved in lewd and lascivious behavior, 

implicate the commonly understood "foreseeability that one's acts may be seen by 

another." Albin, 2016 WL 6651871, at *4. We explained in State v. Throne, No. 119,428, 

2020 WL 3022866, at *5 (Kan. App. 2020), rev. denied 313 Kan. ___ (March 31, 2021), 

that this common meaning is "fact-dependent" and "turns on the time, place, and manner 

of the act." Thus, "[w]hen 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." 2020 WL 3022866, at *6.
8

The language of K.S.A. 2020 Supp. 21-5513(a)(2) demonstrates that the 

legislature intended this common understanding of public conduct to apply to the 

definition of lewd and lascivious behavior. As we have noted, the legislature envisioned 

two types of unlawful exposure of a sex organ—publicly exposing oneself and exposing 

oneself to a nonconsenting person who is not the accused's spouse. The second category 

of conduct includes nonconsensual exposure that would traditionally be considered 

private. See, e.g., State v. Bryan, 281 Kan. 157, Syl. ¶ 2, 130 P.3d 85 (2006) (affirming 

conviction for lewd and lascivious behavior when exposure occurred in nonconsenting 

person's bedroom and holding that the statute does not require the victim to actually 

perceive the offending act). But the first category of conduct, of which the jury was 

instructed here, requires the exposure to have occurred "publicly." 

Letterman acknowledges this distinction but argues that it would make more sense 

to limit criminal liability for public exposure to those exposures that occur "in a public 

place." Yet Letterman's construction would require us to rewrite the statutory definition 

of lewd and lascivious behavior. The statute states that it is unlawful to "publicly expose" 

one's sex organ, not merely to expose oneself in a public venue. Indeed, the Kansas 

Legislature amended the definition of lewd and lascivious behavior in 1993 from 

prohibiting "the exposure of a sex organ in a public place" to prohibit "publicly exposing 

a sex organ." Compare K.S.A. 21-3508(1)(b) (Ensley 1988), with K.S.A. 21-3508(a)(2) 

(revised effective July 1, 1993) and K.S.A. 2020 Supp. 21-5513(a)(2). Accord State v. 

Snellings, 294 Kan. 149, 157, 273 P.3d 739 (2012) (when the legislature revises statutory 

language, courts presume it intended to change the law that existed before the 

amendment). And we are called on to interpret and apply the language of K.S.A. 2020 

Supp. 21-5513(a)(2) as it is written, not to add language that would change the statute's 

meaning. See State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). Questions of 

public policy, including the definition and extent of criminal conduct, are matters "for 

legislative and not judicial determination." State v. Spencer Gifts, LLC, 304 Kan. 755, 

Syl. ¶ 4, 374 P.3d 680 (2016).
9

In sum, we reject Letterman's argument that K.S.A. 2020 Supp. 21-5513(a)(2) is 

ambiguous. Instead, we conclude—consistent with the common meaning of "publicly" 

and with human experience—that "publicly" exposing a person's sex organ within the 

meaning of K.S.A. 2020 Supp. 21-5513(a)(2) involves exposing oneself "in a manner 

observable by or in a place accessible to the public." Merriam-Webster Online 

Dictionary, at https://www.merriam-webster.com/dictionary/publicly. Applying this 

common meaning here, Letterman exposed his penis when he was masturbating in the 

alley and next to a chain-link fence in a manner that was observable, at a minimum, to 

D.H. and her children. Thus, there was sufficient evidence in the record from which the 

jury could conclude that Letterman publicly exposed himself under K.S.A. 2020 Supp. 

21-5513(a)(2).

2. The district court did not commit reversible error during sentencing.

Letterman also challenges his 60-month term of postrelease supervision, which the 

district court imposed after it found that the conduct giving rise to Letterman's conviction 

for lewd and lascivious behavior was done for his own sexual gratification. Letterman 

argues that this determination—which resulted in a supervision term five times longer 

than the 12-month term that would otherwise apply—constituted judicial fact-finding and 

thus violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. 

Ct. 2348, 147 L. Ed. 2d 435 (2000).

Letterman raises his constitutional challenge for the first time on appeal. Appellate 

courts generally do not address issues that were not raised before the district court. But 

we may, in our discretion, consider unpreserved questions if review is possible based on 

the appellate record and if there are compelling reasons to reach the issue presented. See 

State v. Perkins, 310 Kan. 764, Syl. ¶ 2, 449 P.3d 756 (2019). Letterman asserts that his 

sentencing question relies on undisputed facts and implicates his fundamental right to a 

jury trial. Kansas courts have decided to consider Apprendi issues under similar 
10

circumstances in the past. See State v. Gonzalez, 282 Kan. 73, 114-15, 145 P.3d 18 

(2006); State v. Dean, 273 Kan. 929, 934-35, 46 P.3d 1130 (2002); State v. Anthony, 273 

Kan. 726, 727, 45 P.3d 852 (2002); State v. Martinez, 50 Kan. App. 2d 1244, 1250-51, 

338 P.3d 1236 (2014); State v. Unrein, 47 Kan. App. 2d 366, 369, 274 P.3d 691 (2012), 

rev. denied 297 Kan. 1256 (2013); State v. Baker, No. 121,727, 2020 WL 4913283, at *2 

(Kan. App. 2020) (unpublished opinion), rev. denied 312 Kan. 893 (2021). We likewise 

continue to consider Letterman's arguments here. 

In Apprendi, the United States Supreme Court held the Sixth and Fourteenth 

Amendments to the United States Constitution require any fact, other than a prior 

conviction, that increases a crime's penalty beyond the statutory maximum must be 

submitted and proved to a jury beyond a reasonable doubt. 530 U.S. at 476-77, 490; see 

also Alleyne v. United States, 570 U.S. 99, 103, 133 S. Ct. 2151, 186 L. Ed. 2d 314 

(2013) (requiring a jury to find facts triggering an increase in a mandatory minimum 

sentence). In State v. Gould, 271 Kan. 394, 414, 23 P.3d 801 (2001), the Kansas Supreme 

Court concluded that these same principles applied to upward departures from 

presumptive sentences under the Kansas sentencing guidelines. And in Anthony, our high 

court likewise found that the United States Constitution requires that findings that result 

in the extension of postrelease supervision—like the one we consider here—increase the 

duration of a person's sentence and are thus subject to the same constitutional limitations. 

273 Kan. at 727-28.

Based on the severity level of his crime, Kansas law would ordinarily require 

Letterman to serve 12 months' postrelease supervision. See K.S.A. 2020 Supp. 22-

3717(d)(1)(C). But the district court could extend that postrelease-supervision term up to 

60 months if Letterman's offense was sexually motivated. K.S.A. 2020 Supp. 22-

3717(d)(1)(D)(i). In this context, conduct is sexually motivated if "one of the purposes 

for which the defendant committed the crime was for the purpose of the defendant's 

sexual gratification." K.S.A. 2020 Supp. 22-3717(d)(6). 
11

The district court found that Letterman's actions fell within this definition and thus 

imposed a 60-month term of postrelease supervision. But Letterman correctly notes that 

the jury in his case was instructed that lewd and lascivious behavior included conduct 

done "with the intent to arouse or gratify the sexual desires of the defendant or another." 

(Emphasis added.) In other words, the jury was not asked to determine whether 

Letterman's actions were done for his own gratification or for the gratification of 

someone else. Instead, the court had to make that determination when he imposed the 

extended postrelease-supervision term. This court-made finding encroached on 

Letterman's constitutional right to a jury trial in violation of Apprendi.

This conclusion does not end our analysis, however. In Washington v. Recuenco, 

548 U.S. 212, 222, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), the Supreme Court of the 

United States held that an Apprendi violation is not a structural error and is therefore 

subject to a harmless-error analysis. Recuenco involved an appeal by a man whose 

sentence had been extended for three years because he had committed an offense with a 

firearm. At trial, the jury merely found that his offense had involved a "deadly weapon"; 

the judge at sentencing found the evidence showed that this deadly weapon was a 

firearm. The Recuenco Court acknowledged that this judicial fact-finding was improper 

under Apprendi. But the Court reversed the Washington Supreme Court's ruling that this 

violation automatically required the defendant's sentence to be vacated and remanded for 

a determination as to whether the error was harmless. See Recuenco, 548 U.S. at 221-22.

The Kansas Supreme Court analyzed the harmlessness of an Apprendi violation in 

State v. Reyna, 290 Kan. 666, 234 P.3d 761 (2010), overruled on other grounds by State 

v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). Reyna involved a Jessica's Law case where 

the jury had not been instructed that it must find that the accused was at least 18 years 

old. Despite this deficiency, the district court imposed an off-grid sentence of life 

imprisonment. On appeal, the Kansas Supreme Court found that this sentence violated the 

defendant's Sixth Amendment right under Apprendi because it relied on a finding made 
12

by the judge, not the jury. 290 Kan. at 679. But the Reyna court explained the facts of that 

case rendered this violation harmless:

"Reyna testified he was 37 years of age at the time of the trial. There was no conflicting 

evidence or, indeed, any other evidence at all concerning his age. Asking whether the 

record contains evidence that could rationally lead to a contrary finding with respect to 

the element that the defendant was over the age of 18 at the time of the crime, we 

conclude that it does not and, . . . for the same reasons, we are convinced that 

the Apprendi-type error that occurred when the trial court made the age determination 

and imposed sentence . . . was harmless. " 290 Kan. at 682.

The nature of the constitutional defect in this case differs slightly from that 

discussed in Reyna. In that case, the jury had been given no instruction regarding a 

necessary element of a charged offense, but the evidence nevertheless left no doubt that 

the element had been satisfied. At Letterman's trial, the jury was instructed on two 

possible options by which the State could prove lewd and lascivious behavior—conduct 

done for Letterman's sexual gratification or the gratification of another. Accord State v. 

Brown, 295 Kan. 181, 203, 284 P.3d 977 (2012) (concluding these two objects of sexual 

gratification were "options within a means that are simply descriptive of the types of 

factual circumstances that may form the State's proof"). The jury was not asked to 

identify which option applied here. But only one of those options supports an extension 

of postrelease supervision under K.S.A. 2020 Supp. 22-3717(d)(1)(D)(i).

This constitutional defect is more akin to the defect the Supreme Court considered 

in Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991). Griffin

involved an appeal from a multiple-object conspiracy offense. At trial, the jury was 

instructed that it should find the defendant guilty of conspiracy if the evidence showed 

she had participated in either of two objects of the conspiracy: tax fraud and impairing 

the efforts of government agents to ascertain forfeitable assets. The jury returned a 

general verdict, finding the defendant guilty of conspiracy. On appeal, the Government 
13

conceded that the evidence presented at trial only supported the defendant's conviction 

for conspiracy based on the tax-fraud object, not the forfeiture. 

When considering this history, the Supreme Court acknowledged that it would 

have been "preferable" for the trial court to have instructed the jury only on the object of 

the conspiracy charge that was possible based on the evidence presented. 502 U.S. at 60. 

But the Court held that the superfluous instruction in that case was harmless—that is, it 

was not an error that required reversal. 502 U.S. at 59-60. The Court emphasized that the 

jurors would be "well equipped" to rely on their practical experience and understanding 

when they were instructed on two options—one supported by the evidence and one 

entirely devoid of factual support. 502 U.S. at 59-60.

The Kansas Supreme Court has adopted a different analytical framework for 

evaluating alternative-means instructions than the one the Court used in Griffin. See 

Brown, 295 Kan. at 188-200. But as then-Justice Moritz observed in her concurrence in 

Brown, the premise underlying Griffin remains compelling in cases that do not involve 

alternative means of committing a crime: namely, "we can rely upon the jury to do what 

we instruct them to do—i.e., apply the law to the evidence and arrive at a verdict." 295 

Kan. at 218 (Moritz, J., concurring). Thus, when the district court instructs the jury on 

two possible options for committing a crime and the evidence only supports one of those 

options, we may presume that the jury rendered a verdict based on the option supported 

by the evidence. See 295 Kan. at 202 (concluding that the court's instruction as to both 

options of sexual gratification for lewd and lascivious behavior was harmless even 

though there was only evidence to show the defendant acted for his own sexual pleasure).

Returning to the facts of the case before us, there is no evidence that Letterman 

was masturbating to gratify the sexual desires of anyone but himself. To paraphrase the 

Kansas Supreme Court when it found an Apprendi violation harmless in a previous case, 

the evidence of that fact was "essentially uncontroverted." State v. Daniels, 278 Kan. 53, 
14

65, 91 P.3d 1147 (2004). And though the jury was instructed that lewd and lascivious 

behavior could result from an intent to gratify his or another person's sexual desires, we

presume the jury returned a verdict supported by the evidence. In other words, we 

presume that the jury found that the evidence proved beyond a reasonable doubt that 

Letterman intended to indulge his own sexual desires. See Brown, 295 Kan. at 202.

In the same vein, the district court did not commit reversible error when it 

concluded that Letterman's offense was sexually motivated, even in the absence of an 

explicit jury finding to that effect. Based on the evidence presented, the only way the jury 

could have convicted Letterman of lewd and lascivious behavior was to have found 

beyond a reasonable doubt that his conduct was sexually motivated within the meaning of 

K.S.A. 2020 Supp. 22-3717(d)(6). We are confident that the jury convicted Letterman on 

this basis. And we are likewise convinced that the judge's subsequent finding, though 

improper under Apprendi, was harmless.

Before we conclude, we emphasize—similar to the Court's closing observations in 

Griffin—that our determination that the Apprendi violation here was harmless does not 

sanction judicial fact-findings in sentencing enhancements. Such actions are improper 

and violate defendants' rights under the Sixth Amendment. In cases that could involve 

sentencing departures, including extensions of postrelease supervision, the better practice

by far—and the only practice consistent with the guarantees of the Sixth Amendment—is 

to present any relevant factual questions to the jury for its consideration. We merely hold 

that under the specific facts of this case, the court's failure to follow that procedure does 

not require reversal of Letterman's 60-month term of postrelease supervision. 

Affirmed.