1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 119,764

STATE OF KANSAS,

Appellee,

v.

TOMMY L. JONES,

Appellant.

SYLLABUS BY THE COURT

1.

A district court's decision to admit or exclude evidence under K.S.A. 2020 Supp. 

60-455(d) is reviewed for abuse of discretion. 

2.

A district court may exclude relevant evidence if it finds its probative value is 

outweighed by its potential for producing undue prejudice.

3.

When a jury instruction omits an essential element of the crime charged without a 

contemporaneous objection, the error is reviewed on appeal for clear error. 

4.

Although the offenses proscribed by K.S.A. 2014 Supp. 21-5510(a)(1) and (a)(4) 

are similar, the differences between them are not merely semantic in nature.
2

5.

Under existing Kansas statutory law, the State need not prove that a defendant 

knows a child's age to sustain a conviction under K.S.A. 2014 Supp. 21-5510.

6.

As a general rule, issues not raised before the trial court will not be addressed for 

the first time on appeal. Although there are exceptions to this rule, they are prudential. 

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 26, 2020. 

Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed August 6, 2021. 

Judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed in 

part and reversed in part. Judgment of the district court is affirmed in part and reversed in part, the 

sentence is vacated, and the case is remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs

for appellant. 

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, 

and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

WILSON, J.: Following a jury trial, Tommy L. Jones was convicted of four counts 

of sexual exploitation of a child under K.S.A. 2014 Supp. 21-5510; counts Two and Four, 

describing the possession of illicit materials, were charged in the alternative to counts 

One and Three, which described "promoting any performance"—although the jury 

instructions for counts One and Three used different language to describe these offenses.

At sentencing, the district court found Jones to be an aggravated habitual sex offender 

under K.S.A. 2014 Supp. 21-6626 and sentenced him to life in prison without the 

possibility of parole, though it did not impose sentence on the two counts charged in the 
3

alternative. On appeal, a panel of the Court of Appeals reversed two of Jones' convictions 

on the basis that they were charged in the alternative. The panel also determined that 

Jones should have been sentenced as a persistent sex offender under K.S.A. 2014 Supp. 

21-6804(j); otherwise, the panel affirmed Jones' convictions.

Both Jones and the State of Kansas petitioned this court for review. We accepted 

review on all issues. Jones alleges: (1) district court error in permitting evidence of prior 

convictions; (2) jury instructional errors; (3) unconstitutional statutory basis for 

conviction; and (4) sentencing error. The State alleges: (1) panel error in reversing the 

alternative convictions and (2) sentencing error. While we find no error in the district 

court's decision to permit testimony regarding Jones' prior convictions, we conclude that 

the asserted errors in the language of the jury instructions pertaining to Jones' convictions

in counts One and Three were not harmless. Accordingly, we reverse those convictions. 

We also reverse the Court of Appeals' decision to reverse Jones' convictions under counts 

Two and Four, and—because we have reversed Jones' primary offense of conviction—

vacate Jones' remaining sentences and remand the matter for further proceedings not 

inconsistent with this opinion, including resentencing on counts Two and Four. 

FACTS AND PROCEDURAL BACKGROUND

Underlying Facts

In October of 2014, 16-year-old A.C. met Jones through the online game World of 

Warcraft while playing as her character "Grievance." A.C., who lived with her mother in 

Pennsylvania, initially told Jones that she was a 19-year-old male. The two began to talk 

regularly through the game, speaking for hours each day. After a few weeks, A.C.

revealed to Jones that she was female, though she still represented that she was 18 years 

old.
4

Eventually, A.C.'s conversations with Jones became sexual. Jones claimed A.C.

initiated the virtual sex "and that he never saw her engaged in sexual activity." He said 

both parties sometimes masturbated off-camera. During one such "sexual" conversation 

over Skype on November 3, 2014, Jones asked A.C. to send him "sexy photos" and to 

call him. Among other things, Jones wrote:

"[A.C.] I'm goof ball right now..but I mean what i say. i do want you and you are 

so fucking amazing and beautiful. I'm also scared as fuck. I could get in so much trouble 

hahahahahah. In a way you are so worth the risk."

About a minute later, A.C. transmitted two photographs. Jones replied to these 

photographs by sending A.C. messages such as "oh yaya," "OMFG," and "COME GIVE 

IT TO ME!!!!" However, Jones never explicitly mentioned nude photographs in this 

conversation.

A few hours later, Jones and A.C. again spoke via Skype. This time, A.C. told 

Jones that she had been born in 1998. In response, Jones said, "lol u 16," to which A.C. 

replied, "2 months to be 17." Jones also later remarked, "Oh my god I can't believe I like 

a 16 year old," and, "I'm crazy."

Jones and A.C. also discussed their lives. A.C. expressed general frustration with 

her mother's control over her life, while, in several conversations, Jones encouraged A.C. 

to come live with him in Kansas. At one point, Jones encouraged A.C. to delete all 

information regarding their correspondence from her computer. A few days after learning 

A.C. was 16 years old, Jones and A.C. discussed practical arrangements to enable A.C. to 

travel to Kansas to be with Jones; during this conversation, Jones wrote, "since your [sic] 

16, does that mean you have a joint account with your mom?" 
5

Not long after this conversation, A.C. attempted to board a bus to travel to Kansas. 

She was ultimately prevented from traveling to Kansas, however, and police brought 

A.C. back to her mother—who had quarreled with A.C. earlier that day, after learning

that A.C. had attempted to purchase a bus ticket and a $250 Wal-Mart gift card—in the 

middle of the night. A.C.'s mother then checked A.C. into an emergency room. Based on 

A.C.'s disclosures, the hospital informed her mother that A.C. should go to a crisis 

intervention center. Her mother then called the FBI.

Based on what they learned from A.C., law enforcement soon focused an 

investigation on Jones. The FBI contacted Jones' parole officer at Kansas Department of 

Corrections, Ed Desir, who was supervising Jones for his prior convictions of rape and 

aggravated indecent liberties with a 12 or 13 year old child. Desir then called Jones, who 

came in for an interview on the following morning, November 18, 2014. There, Jones 

acknowledged that he had been in contact with A.C. Jones also informed Desir that his 

laptop had been stolen on November 14, which he had reported to the police.

Undeterred, Desir asked Jones for his cell phone. Jones surrendered the phone to 

Desir, who briefly searched it. On Jones' Facebook Messenger account, Desir observed 

several messages from A.C. Based on these, Desir suspected that the phone would require 

further examination by law enforcement; he confiscated it and gave it to City of Wichita 

Detective Jennifer Wright on the following day, November 19. 

After Jones' phone was put into "airplane mode" to block any external 

communications, the contents of the phone were downloaded and analyzed by a forensic 

investigator with the Sedgwick County Sheriff's Department. The investigator then 

produced a report documenting numerous conversations between Jones' Skype account 

and other individuals, including two different usernames belonging to A.C. In a folder on 

Jones' phone that bore A.C.'s first name, investigators found three nude photographs of 
6

A.C. No one had attempted to delete these images; instead, someone had taken the action 

to move the photographs into this folder, as Skype would not have stored them

automatically in a file named after A.C. Based on the filenames, these images appeared to 

be copies of the files sent to Jones by A.C. during a Skype conversation on November 3.

Two of these photographs, which became the State's Exhibits 2A and 2C at trial, 

portrayed A.C. "holding her breasts" and "touching the vaginal area," respectively.

Jones acknowledged to investigators that he had spoken to A.C. over Skype. He 

also identified both his own Skype username and the two usernames A.C. employed. 

Jones told Detective Wright that he thought A.C. was 18 years old; when Wright told him 

otherwise, Jones "acted like that was the first time that he had heard that." Jones admitted 

to investigators that he and A.C. had engaged in sexual conversations together over 

Skype. 

Jones' Trial Testimony

Jones testified at his trial. While he admitted to participating in sexual 

conversations with A.C., he claimed to have never seen the above-referenced 

conversation on November 3—including the photographs sent by A.C.—before trial. 

Jones claimed that he left his Skype account logged in to every device in his residence, 

and that anyone could have accessed it. According to Jones, A.C. only told him she was 

17 years old on the evening of November 7, 2014; in this version, when A.C. told him 

she was 17, he told her that he would rather she wait until she was 18 before attempting 

to visit him in Kansas "because [he] was not allowed to have contact with minors."

According to Jones, A.C. mostly initiated conversations about sex. Jones denied 

procuring the three photos of A.C. found on his phone and denied any knowledge of how 

those photos ended up on his phone. Jones further denied ever asking A.C. to send him 
7

nude photos of herself, denied asking A.C. to ever do anything sexual while they were 

talking, and denied engaging in any sexual activities himself while she was watching 

him. Jones claimed he could not remember if he ever asked A.C. to come to Kansas, but 

he believed they had a "mutual agreement about getting married." Jones claimed that, at 

the time they made this agreement, he thought A.C. was 18 years old.

District Court Proceedings

In a Second Amended Information, the State ultimately charged Jones with four 

counts of sexual exploitation of a child, based on the photographs contained in the State's 

exhibits. Counts One and Three charged Jones with promoting any performance that 

includes sexually explicit conduct by a child under 18 years of age knowing the character 

and content of the performance, under K.S.A. 2014 Supp. 21-5510(a)(4). Counts Two 

and Four charged Jones—in the alternative—with possessing any visual depiction of a 

child under 18 years of age engaging in sexually explicit conduct, under K.S.A. 2014 

Supp. 21-5510(a)(2). Although the jury verdict forms did describe each count as 

"alternative," the jury returned guilty verdicts on all counts. The district court accepted 

the verdicts and found Jones guilty of all charges. 

At sentencing, the district court concluded that Jones qualified as an aggravated 

habitual sex offender under K.S.A. 2014 Supp. 21-6626 and sentenced him to life in 

prison without the possibility of parole on all four counts. The district court only imposed 

this sentence for Counts One and Three, which it ran concurrent; the court did not impose 

the pronounced life sentences for the alternative counts, Two and Four. 
8

Appellate Proceedings

Jones appealed. A panel of the Court of Appeals affirmed Jones' convictions for 

counts One and Three, reversed his convictions for counts Two and Four on the basis that 

the district court lacked authority to enter convictions on the alternatively charged counts, 

and concluded that Jones should have been sentenced as a persistent sex offender under 

K.S.A. 2014 Supp. 21-6804(j)(2)(A), rather than as an aggravated habitual sex offender 

under K.S.A. 2014 Supp. 21-6626. State v. Jones, No. 119,764, 2020 WL 3481527, at *6-

7, *15 (Kan. App. 2020) (unpublished opinion). Jones and the State both petitioned this 

court for review, raising the six issues set forth above.

ANALYSIS

The district court did not abuse its discretion in permitting the State to present evidence 

of Jones' prior convictions.

Jones first challenges the district court's decision to permit the State to present 

evidence that Jones had been previously convicted of rape and aggravated indecent 

liberties.

Standard of Review

Under K.S.A. 2020 Supp. 60-455(d), subject to certain exclusions, "evidence of 

the defendant's commission of another act or offense of sexual misconduct is admissible,

and may be considered for its bearing on any matter to which it is relevant and 

probative." As we have previously established:

"The admission of evidence involves several legal considerations: determining 

relevance; identifying and applying legal principles including rules of evidence; and 
9

weighing prejudice against probative value. We apply various standards of review during 

this process. First, we consider whether the evidence is relevant. All relevant evidence is 

admissible unless it is prohibited by statute, constitutional provision, or judicial 

precedent. K.S.A. 60-401(b) defines relevant evidence as 'evidence having any tendency 

in reason to prove any material fact.'

"Relevance has two elements: materiality and probativeness. Evidence is 

material when the fact it supports is in dispute or in issue in the case, and our standard of 

review for materiality is de novo. Evidence is probative if it has any tendency to prove 

any material fact, and we review a lower court's decision that evidence is probative for 

abuse of discretion. A judicial action constitutes an abuse of discretion if (1) it is 

arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on 

an error of fact. A district court may still exclude relevant evidence if it finds its

probative value is outweighed by its potential for producing undue prejudice. [Citations 

omitted.]" State v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021).

Discussion

Additional Facts

The State filed a pre-trial Motion for Admission of Evidence Pursuant to K.S.A. 

60-455(d) on November 9, 2016. The district court considered the State's motion in a 

hearing before trial. At this hearing, the prosecutor proffered that Jones' 2008 convictions 

for rape and aggravated indecent liberties—with a victim who was either 12 or 13 years 

of age—were obtained following a trial on stipulated facts. The prosecutor further 

proffered that the facts underlying these previous convictions arose from what Jones 

supposedly characterized as a "consensual encounter," i.e., not an "overcome by force or 

fear sort of rape." But the prosecutor suggested that the State would only introduce this 

evidence by calling Jones' parole officer, who would testify that he was supervising Jones 

for these prior crimes with a child under 14 years of age. The prosecutor argued that these 

convictions were probative as to Jones' knowledge that A.C. was not 16 years old based 
10

on Jones' expressions of awareness that he could get in trouble from his contact with A.C. 

The defense, in turn, argued that nothing about the prior convictions was relevant. 

In evaluating the parties' arguments, the district court referenced the factors set 

forth in State v. Prine, 297 Kan. 460, 303 P.3d 662 (2013), including (1) how clearly the 

prior act has been proved, (2) how probative the evidence is of the material fact that is 

being admitted to prove, and (3) how seriously disputed the material fact is, and whether 

the government has any less prejudicial evidence it can avail itself. The court 

acknowledged that "the cards are sort of stacked against the defendant in these kinds of 

situations." The court then set forth its analysis:

"I do think the Court has to look at this very carefully because the fact they are not the 

same crime and, you know, in looking at those four factors that are cited in Prine 2 at 

page 674 of the State's brief, which comes from the federal rules, and in looking at the 

other direction . . . . State v. Garcia, which talks about evidence that actually or probably 

brings about the wrong results under circumstances of the case is unduly prejudicial. And 

even in Garcia I think it is clear that . . . prior crimes of this nature, are almost always 

going to be prejudicial, and I can't think of a situation where they are not going to be 

prejudicial. And Garcia talks about . . . evidence being derogatory. It is—I don't know 

that there is a cleaner way, if you will, to present it to the jury than what the State is 

proposing.

"And so really the ultimate question is does this material relate to a disputed fact 

or facts and it appears to me that it does. And does it go to the defendant's propensity to 

commit the crimes he's charged with in this case, and the reality of it is we're talking 

about two cases with underaged . . . females, and I think under . . . that statute that it is, as 

the State . . . has proposed, is allowed . . . .

"The statute does appear to me to fit and it does go to facts that are clearly 

disputed between the parties, and, therefore, based upon the case law and the direction I 

will allow the State to present the evidence in the trimmed down version that they have 

suggested and allow that information to go to the jury." 
11

Merits

Jones argues the district court allowed the admission of his prior convictions 

simply because K.S.A. 2020 Supp. 60-455(d) permitted it, without "adequately" 

weighing its prejudicial effect against its probative value. The Court of Appeals rejected 

this argument. It acknowledged its assumption that "the balancing test is required even 

for 60-455(d) evidence," but concluded, from the nature of the district court's comments, 

that it had applied the balancing test. 2020 WL 3481527, at *3-4. The panel also rejected 

Jones' argument that the district court failed to conduct any balancing test for insufficient 

briefing. 2020 WL 3481527, at *3.

We agree with the panel's reasoning. Although the district court lacked the benefit 

of the case cited by the panel—State v. Boysaw, 309 Kan. 526, 439 P.3d 909 (2019)—or 

the case cited above—Levy—it nevertheless referenced several of the factors underlying 

the balancing test described in those cases. See Boysaw, 309 Kan. at 541. The district 

court noted that the State's method of proving Jones' prior convictions was the most 

"clean[]" way to do so, implying both an attempt to minimize the time it would take to 

establish these convictions and the emphasis placed on them. Nor do we read the district 

court's discussion of the prior convictions' relevance as an indication that the court 

assumed this evidence was admissible no matter what, as Jones argues. Instead, the 

district court weighed the probative value of the convictions against their unquestionably 

prejudicial impact. Regardless of whether Jones' knowledge of A.C.'s age was an element 

of the crime (which Jones also challenges in a separate issue), part of Jones' trial strategy 

was to suggest that he was not the individual who asked A.C. to send "sexy" photographs

of herself. Jones' propensity to engage in relationships with teenage (if not necessarily 

younger-than-age-18) girls was relevant to this issue, as the district court reasoned. 
12

Consequently, the district court applied the correct balancing test and reached a 

reasonable conclusion. We find no error in its decision.

The jury instructions with respect to counts One and Three were clearly erroneous based 

on their omission of an element of the charged crimes.

Jones next argues that the district court lacked authority to convict him of the 

crimes charged in counts One and Three because the jury instructions used different 

language than the charging document. Jones argues that these convictions—which he 

claims arose under K.S.A. 2014 Supp. 21-5510(a)(1), even though the district court's 

journal entry recorded them as arising under (a)(4)—violated his right to have a jury 

determine every element charged under the Sixth and Fourteenth Amendments, as 

recognized by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 

(2000).

Standard of Review

Before addressing Jones' argument, we must first consider the framework under 

which to view it. Jones couches his argument in the language of a challenge to the district 

court's authority to enter a conviction "because the jury did not determine that [Jones] 

committed (a)(4) crimes," rather than as a challenge to the jury instructions themselves. 

We are unpersuaded that this framing entitles him to a different standard of review from a 

normal challenge to jury instructions, however. Indeed, the case he cites for the premise 

that a complaint's wording is binding on the State—State v. Trautloff, 289 Kan. 793, 802-

03, 217 P.3d 15 (2009)—itself addressed erroneous jury instructions, not the district 

court's absence of authority to enter a conviction founded upon erroneous instructions. 

Instead, we agree with the Court of Appeals' decision to assess this issue as a 

question of jury instruction error. Jones, 2020 WL 3481527, at *7-8. Ordinarily, when 
13

presented with a claim that a district court has erred in issuing or refusing to issue a jury 

instruction: 

"(1) First, the appellate court should consider the reviewability of the issue from both 

jurisdiction and preservation viewpoints, exercising an unlimited standard of review; 

(2) next, the court should use an unlimited review to determine whether the instruction 

was legally appropriate; (3) then, the court should determine whether there was sufficient 

evidence, viewed in the light most favorable to the defendant or the requesting party, that 

would have supported the instruction; and (4) finally, if the district court erred, the 

appellate court must determine whether the error was harmless, utilizing the test and 

degree of certainty set forth in [State v. ]Ward[, 292 Kan. 541, 565, 256 P.3d 801 

(2011)]." State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).

"The first element of this analysis ultimately affects the last one 'in that whether a 

party has preserved an issue for review will have an impact on the standard by which we 

determine whether an error is reversible.'" State v. Ross, 310 Kan. 216, 223, 445 P.3d 726 

(2019) (quoting State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 [2015]). If, as here, a 

defendant does not object to a district court's jury instructions, an appellate court:

"appl[ies] the clear error standard mandated by K.S.A. 2017 Supp. 22-3414(3). Under 

that standard, an appellate court assesses whether it is 'firmly convinced that the jury 

would have reached a different verdict had the instruction error not occurred.' [The 

defendant] has the burden to establish reversibility, and in examining whether he has met 

that burden we make a de novo determination based on the entire record. [Citations 

omitted.]" State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018).

But our review is complicated by the fact that, here, the claimed legal error 

resulted in the total omission of an essential element of the charged crime. As we have 

recognized:
14

"A jury is vested with the duty to determine whether a defendant is guilty or not guilty of 

each charged crime; and in fulfilling that duty, it must apply the law to the facts as it 

finds them. Therefore, the failure to properly instruct a jury on the essential elements of 

the crime charged typically prevents the jury from rendering a proper verdict. Moreover, 

a defendant's right to have the jury properly instructed on all essential elements of the 

charged crime is rooted in the Sixth Amendment to the United States Constitution, which 

guarantees a defendant's right to trial by jury. [Citations omitted.]" State v. Brown, 298 

Kan. 1040, 1045, 318 P.3d 1005 (2014).

In the absence of a contemporaneous objection, the failure to include an essential element 

of the crime in jury instructions is still reviewed for clear error. 298 Kan. at 1048 (citing 

State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 [2012]). "In other words, where the 

appellate record convinces the appellate court that the jury would have found the 

essential element if it had been asked to do so, the failure to obtain the jury's finding is 

harmless error." Brown, 298 Kan. at 1049 (discussing 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]). See also State v. Daniels, 278 Kan. 53, 58-63, 91 P.3d 1147 (2004) 

(reviewing the omission of an element for clear error, but noting the need to evaluate 

harmlessness under the test set forth in Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 

1827, 144 L. Ed. 2d 35 [1999]: "[W]here a reviewing court concludes beyond a 

reasonable doubt that the omitted element was uncontested and supported by 

overwhelming evidence, such that the jury verdict would have been the same absent the 

error, the erroneous instruction is properly found to be harmless."). Stated another way, 

"The error is harmless if the appellate court has a firm belief beyond a reasonable doubt 

that the error had little, if any, likelihood of changing the result of the trial." State v. 

Jarmon, 308 Kan. 241, 244, 419 P.3d 591 (2018) (further describing the standard of 

review as "relaxed because Jarmon did not object to the instructions").
15

Discussion

K.S.A. 2014 Supp. 21-5510 provides, in part:

"(a) Sexual exploitation of a child is:

(1) Employing, using, persuading, inducing, enticing or coercing a child under 18 years of age, or 

a person whom the offender believes to be a child under 18 years of age, to engage in sexually explicit 

conduct with the intent to promote any performance;

. . . .

(4) promoting any performance that includes sexually explicit conduct by a child under 18 years 

of age, or a person whom the offender believes to be a child under 18 years of age, knowing the character 

and content of the performance.

. . . .

"(d) As used in this section:

. . . .

(2) 'promoting' means procuring, transmitting, distributing, circulating, presenting, producing, 

directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising:

(A) For pecuniary profit; or

(B) with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the 

offender or any other person."

In counts One and Three, Jones was charged with violating K.S.A. 2014 Supp. 21-

5510(a)(4) based on the act of "promot[ing] any performance that includes sexually 
16

explicit conduct by a child under eighteen (18) years of age . . . knowing the character 

and content of the performance." In contrast, the jury instructions tracked the language of 

K.S.A. 2014 Supp. 21-5510(a)(1) by advising the jury that the State had to prove Jones 

persuaded, induced, or enticed the child victim to engage in sexually explicit conduct

"with the intent to promote a performance." 

The State concedes that the jury instructions were legally erroneous, as the Court 

of Appeals concluded. We agree. But the State also argues that the instruction was not 

clearly erroneous based on the strength of the evidence of Jones' guilt. The Court of 

Appeals agreed with this approach, writing, "Had the district court properly instructed the 

jury, we are convinced beyond a reasonable doubt that Jones would have been 

convicted." Jones, 2020 WL 3481527, at *9. We disagree.

First, while we appreciate the Court of Appeals' observation that the distinction 

between a violation of K.S.A. 2014 Supp. 21-5510(a)(1) and a violation of (a)(4) "would 

likely be lost on the jury," the differences between the subsections are not mere 

semantics. 2020 WL 3481527, at *9. To convict Jones of a violation under (a)(4), the jury 

had to determine that Jones promoted, i.e., procured "any performance that includes 

sexually explicit conduct by a child under 18 years of age, . . . knowing the character and 

content of the performance." In contrast, the jury actually convicted Jones of persuading

A.C. "to engage in sexually explicit conduct with the intent to promote any performance." 

K.S.A. 2014 Supp. 21-5510(a)(1). In other words, the jury was instructed that it had to 

consider whether, beyond a reasonable doubt, the evidence supported a finding that Jones 

(1) persuaded, (2) a child under 18 years of age, (3) to engage in sexually explicit 

conduct, and (4) with the intent to promote any performance. As charged, however,

Jones' actual crime required a finding that Jones (1) promoted or procured, (2) any 

performance, (3) that includes sexually explicit conduct, (4) by a child under 18 years of 

age, and (5) knew the content and character of the performance. 
17

Second, the evidence that Jones committed violations under both K.S.A. 2014 

Supp. 21-5510 (a)(1) and (a)(4) is not so strong as to provide us with "a firm belief 

beyond a reasonable doubt that the error had little, if any, likelihood of changing the 

result of the trial." Jarmon, 308 Kan. at 244. Jones asked A.C. to send "sexy pictures" 

during their "sexual" conversation of November 3. Had the jury been properly instructed, 

it could have inferred this demonstrated knowledge of the content and character of the 

requested performance—being the nude pictures A.C. later sent to Jones. However, given 

the error, the evidence is less than overwhelming. 

Critically, the strongest direct evidence that Jones knew what he was asking for 

lies in his use of the adjective "sexy." Without putting too fine a point on it, materials 

which could be viewed as "sexy" do not necessarily meet the statutory definition of 

"sexually explicit conduct." "Sexy" could mean an expressive facial expression or a 

suggestive pose of a fully clothed person. The meaning of "sexually explicit conduct" is 

specifically defined by K.S.A. 2014 Supp. 21-5510(d)(1) as "actual or simulated: 

Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oralgenital, anal-genital or oral-anal contact, whether between persons of the same or 

opposite sex; masturbation; sado-masochistic abuse with the intent of sexual stimulation; 

or lewd exhibition of the genitals, female breasts or pubic area of any person." The

overlap of "sexy" with "sexually explicit conduct" is not so complete as to warrant our 

firm belief, on appellate review, that the error had little likelihood of changing the result 

at trial.

Consequently, we find the jury instructions given with respect to counts One and 

Three to be clearly erroneous and reverse Jones' convictions for those counts. This 

decision also controls our analysis of the State's claim that the panel erred in reversing 

two of Jones' alternatively charged convictions for counts Two and Four. Without 
18

addressing the merits of the panel's decision on this point, we find that the basis upon 

which the panel reversed Jones' convictions for counts Two and Four no longer exists. 

Consequently, we reverse the panel's decision to reverse Jones' convictions for counts 

Two and Four. 

Additionally, because the district court considered count One to be the primary 

offense, our reversal of Jones' conviction for count One requires us to remand the matter 

for resentencing upon Jones' remaining convictions in counts Two and Four. K.S.A. 2020 

Supp. 21-6819(b)(5). Thus, we reverse Jones' convictions for counts One and Three, 

reverse the panel's decision to reverse Jones' convictions for counts Two and Four, vacate 

Jones' sentences for all four counts, and remand the matter to the district court for further 

proceedings not inconsistent with this opinion—including resentencing for counts Two 

and Four under K.S.A. 2020 Supp. 21-6819(b)(5) and, potentially, retrial on counts One 

and Three.

The jury instructions' comment that the State need not prove Jones knew A.C.'s age was 

legally appropriate under existing Kansas statutes. Additionally, Jones failed to preserve 

his First Amendment challenge to K.S.A. 2014 Supp. 21-5510 for appellate review.

Jones' next issue is bifurcated. He first argues the jury instructions were clearly 

erroneous because they informed the jury that, "The State need not prove the defendant 

knew the child's age." He argues this instruction represents an incorrect statement of the 

law. Second, Jones argues that, if the jury instructions correctly stated that the 

prosecution was not required to prove Jones knew A.C.'s age, then the statute itself was 

facially unconstitutional based on its overbreadth, in violation of the First Amendment. 

Jones did not object to the jury instructions or raise this constitutional issue at trial.
19

Standard of Review

We have already set forth our standard of review as to claims of jury instruction 

error. As to Jones' constitutional challenge:

"We review the constitutionality of a statute as a question of law and apply a de novo 

standard of review. The constitutionality of a statute is presumed, and all doubts must be 

resolved in favor of the validity of the statute. Before the statute may be stricken, it must 

clearly appear to violate the constitution. This court must construe the statute as 

constitutionally valid if there is any reasonable way to do so. [Citations omitted.]" Tolen 

v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008).

A facial challenge to the constitutionality of legislation is "the most difficult 

challenge to mount successfully, since the challenger must establish that no set of 

circumstances exists under which the Act would be valid." United States v. Salerno, 481 

U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697 (1987). Moreover, "[t]he fact that 

the [challenged legislation] might operate unconstitutionally under some conceivable set 

of circumstances is insufficient to render it wholly invalid, since we have not recognized 

an 'overbreadth' doctrine outside the limited context of the First Amendment." 481 U.S. at 

745. See State v. Watson, 273 Kan. 426, 435, 44 P.3d 357 (2002). Additionally, within 

the context of First Amendment "overbreadth" challenges,

"Where conduct and not merely speech is involved, the United States Supreme Court 

requires that 'the overbreadth of a statute must not only be real, but substantial as well, 

judged in relation to the statute's plainly legitimate sweep.' This court has divided this 

burden into a two-part test. The party attacking the constitutionality of a statute on the 

basis of overbreadth must establish '(1) the protected activity is a significant part of the 

law's target, and (2) there exists no satisfactory method of severing that law's 

constitutional from its unconstitutional applications.' [Citations omitted.]" State v. 

Williams, 299 Kan. 911, 920, 329 P.3d 400 (2014).
20

Discussion

Jury Instructions

Jones first argues that the jury instructions were legally inappropriate based on 

their assertion that the State need not prove Jones knew A.C.'s age. We disagree. 

The challenged jury instructions were modeled after PIK Crim. 4th 55.180. As 

authority for the challenged portions of the instructions, PIK cites K.S.A. 21-5204(b): 

"Proof of a culpable mental state does not require proof: . . . (b) that the accused had 

knowledge of the age of a minor, even though age is a material element of the crime with 

which the accused is charged." Cf. State v. Fore, 17 Kan. App. 2d 703, 705, 843 P.2d 292 

(1992) (predecessor to K.S.A. 21-5204 "expressly bars lack of knowledge about a minor's 

age as a defense to the crimes charged"). Consequently, we conclude that the instructions 

accurately captured Kansas law as written.

First Amendment Overbreadth Challenge

As a fallback, Jones argues that, if the jury instructions accurately stated Kansas 

law as written, then the law is nevertheless unconstitutionally overbroad, in violation of 

the First Amendment. Jones relies primarily on United States v. X-Citement Video, Inc., 

513 U.S. 64, 72-73, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994), to support this argument.

But Jones did not raise his constitutional challenge to K.S.A. 2014 Supp. 21-5510 

at trial. He asked the Court of Appeals to address this issue for the first time on appeal 

based on (1) the purely legal character of the issue, and (2) the need to consider the issue 

to prevent a denial of fundamental rights. Both are recognized exceptions to the general 

rule. See, e.g., State v. Vonachen, 312 Kan. 451, 457, 476 P.3d 774 (2020). Theoretically, 
21

both exceptions could apply. See, e.g., U.S.D. No. 503 v. McKinney, 236 Kan. 224, 234, 

689 P.2d 860 (1984) (recognizing freedom of speech as "among the most fundamental 

personal rights and liberties of the people"). But see United States v. Henson, 705 Fed. 

Appx. 348, 356 (6th Cir. 2017) (unpublished opinion) ("there is no fundamental right to 

possess child pornography"). Nevertheless, both exceptions are prudential, which 

appellate courts can apply in their discretion. See, e.g., State v. Gross, 308 Kan. 1, 6, 417 

P.3d 1049 (2018).

The Court of Appeals refused to consider the matter for the first time on appeal, 

citing State v. Zabrinas, 271 Kan. 422, 427, 24 P.3d 77 (2001). Jones, 2020 WL 

3481527, at *10. There, the court refused to address a challenge to the constitutionality of 

K.S.A. 21-3516 (the predecessor of K.S.A. 21-5510) based on the absence of a scienter 

requirement. Zabrinas, 271 Kan. at 427. As the court wrote:

"Had the scienter argument been raised below, the jury might have been more 

specifically instructed. However, the instructions given are clearly sufficient and required 

a finding that the defendant's conduct was intentional, which was defined as 'willful and 

purposeful and not accidental.' One of the stated exceptions to our rule that '[a]n issue not 

presented to the trial court will not be considered for the first time on appeal,' is that such 

a question should be considered if necessary to serve the ends of justice or prevent denial 

of fundamental rights. Based on the clearly pornographic nature of all of the material 

viewed, the consideration of the scienter contention is not necessary here, and we limit 

our discussion to the overbreadth issue. [Citations omitted.]" 271 Kan. at 427.

Later, the Zabrinas court also noted the "uncontroverted" testimony estimating 

that the children depicted were all "substantially under the age of 16 years," which 

"would be known to any viewer." 271 Kan. at 432-33. While this aspect of Zabrinas is 

distinguishable from Jones' case, we nevertheless find the Court of Appeals did not abuse 

its discretion by declining to consider Jones' First Amendment claim for the first time on 

appeal.
22

Although we agree with the panel's decision, we depart from its conclusion

that part of Jones' argument was "waived or abandoned" under Supreme Court 

Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35) because Jones did "not explain why this 

issue was not raised at the district court level and why we should consider it for 

the first time on appeal." Jones, 2020 WL 3481527, at *9. Although Jones did not 

explain why the argument was not raised below, his amended brief before the 

Court of Appeals represented that, "Although trial counsel did not challenge the 

constitutionality of the statute below, this Court may consider the claim as, (1) a 

question of law arising on proved or admitted facts that is determinative of the 

case, and (2) necessary to prevent a denial of fundamental rights." Later, in a reply 

brief, Jones devoted several pages of argument to this issue, including an attempt 

to distinguish Zabrinas. Consequently, Jones' appellate briefing did not fall afoul 

of Rule 6.02(a)(5), and we disagree with the panel's conclusion that his argument

was waived or abandoned. Regardless, we reiterate that the panel did not abuse its 

discretion in refusing to consider this issue.

We do not address the parties' remaining arguments.

The parties present three final issues. We have already noted the State's challenge 

to the panel's decision to reverse Jones' alternatively charged convictions. As we have 

indicated, we decline to reach the merits of this issue because the panel's basis for 

reversing Jones' convictions for counts Two and Four no longer exists, i.e., there are

currently no alternatively charged convictions to counts Two and Four. Moreover, as we 

cannot determine whether the State will retry Jones on the two counts reversed above, 

any discussion of the proper remedy for alternatively charged convictions would be 

entirely speculative at this point. Cf. Sierra Club v. Mosier, 305 Kan. 1090, 1130, 391 

P.3d 667 (2017) (describing an argument as "currently moot under existing law and not 
23

ripe pending speculation regarding the resolution of the other litigation"). We thus leave 

this question for another day.

The final two issues both pertain to the question of Jones' sentences. Specifically, 

the State contends that the Court of Appeals panel erred in vacating Jones' sentences 

under the aggravated habitual sex offender statute, K.S.A. 2014 Supp. 21-6626(c), on 

the basis that the rule of lenity required Jones to be sentenced as a persistent sex 

offender under K.S.A. 2014 Supp. 21-6804(j). Jones also takes issue with a related 

aspect of the panel's decision, claiming the panel erred in rejecting his contention that, 

because the State did not mention prior "sexually violent" crimes in the charging 

document to put him on notice that he could be sentenced as either a persistent or an 

aggravated habitual sex offender, the district court could only sentence him to the terms 

of imprisonment authorized for level 5 felony offenses. 

Because we have reversed Jones' convictions in counts One and Three, reversed 

the panel's decision to reverse Jones' convictions in counts Two and Four, and remanded 

the case to the district court for further proceedings—including resentencing Jones, as 

required by K.S.A. 2020 Supp. 21-6819(b)(5)—we also find both arguments to be moot 

in part and unripe in part, as the circumstances underpinning the parties' arguments have 

been swept away, and it is beyond our power to guess whether—and when—they may 

emerge again. Nor do we find the possibility that the district court will resentence Jones 

as a persistent sex offender for counts Two and Four, rather than an aggravated habitual 

sex offender, to render the issue sufficiently definite to merit our consideration at the 

present. Cf. State v. Montgomery, 295 Kan. 837, 841, 286 P.3d 866 (2012) (noting 

exception to mootness doctrine for issues capable of repetition); State ex rel. Morrison v. 

Sebelius, 285 Kan. 875, 896, 179 P.3d 366 (2008) (to be ripe, issues must have "taken 

fixed and final shape rather than remaining nebulous and contingent"). Consequently, we 

do not reach the parties' final three arguments.
24

CONCLUSION

Jones' convictions for sexual exploitation of a child under counts One and Three of 

the Second Amended Information are reversed due to clearly erroneous jury instructions, 

and his sentences for those convictions are vacated. We further reverse the Court of

Appeals' decision to reverse Jones' convictions under counts Two and Four, vacate the 

district court's sentences for those counts pursuant to K.S.A. 2020 Supp. 21-6819(b)(5), 

and remand the matter for further proceedings not inconsistent with this opinion. 

Judgment of the Court of Appeals affirming in part and reversing in part the 

district court is affirmed in part and reversed in part. Judgment of the district court is 

affirmed in part and reversed in part, the sentence is vacated, and the case is remanded 

with directions.