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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.