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NOT DESIGNATED FOR PUBLICATION

No. 125,611

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

TIMOTHY G. MARTINS,

Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; GUNNAR A. SUNDBY, judge. Submitted without oral 

argument. Opinion filed August 2, 2024. Affirmed.

Darby VanHoutan, of Kansas Appellate Defender Office, for appellant. 

Brian Deiter, assistant district attorney, Suzanne Valdez, district attorney, and Kris W. Kobach, 

attorney general, for appellee.

Before BRUNS, P.J., GARDNER and ISHERWOOD, JJ.

PER CURIAM: Timothy G. Martins appeals from his convictions and sentence after 

a jury found him guilty of one count of indecent liberties with a child and three counts of 

aggravated indecent liberties with a child. Before sentencing, Martins filed a motion and 

argued that a variety of factors warranted a departure from the statutorily established hard 

25 years to life sentence to a prison term of only 122 months. His request was denied. On 

appeal, Martins contends his convictions must be reversed because the State committed 

prosecutorial error during closing arguments and there is not sufficient evidence to 

support one of his convictions for aggravated indecent liberties. He further argues he is 
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entitled to be resentenced given that the district court abused its discretion when it 

declined to impose the departure sentence he requested. Following a careful review of the 

record, the claims of error alleged, and the law governing those respective issues, we are 

not persuaded that error occurred during Martins' trial. Accordingly, his convictions and 

sentence are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

The abuse in this case spanned a period of several years during which time 

Martins perpetrated multiple unlawful sex acts against Jane Doe and Mary Roe. The 

issues Martins brings before us for consideration largely do not pertain to the convictions 

arising out of the abuse Jane Doe suffered. As a result, we will not include details 

associated with those offenses in our factual recitation of the case.

In January 2021, during Mary's senior year of high school, a significant argument 

erupted between her and Martins which prompted Mary to move out of the house. 

Immediately afterwards, she called a family member to inform them of her decision and 

report that Martins inappropriately touched her and Jane during their childhood. Upon 

receiving this news, the relative shared the information with a law enforcement officer 

who, in turn, relayed the report to the Lawrence Police Department Special Victims Unit 

("SVU"), and an investigation followed. As a result of that investigation, the State 

charged Martins with one count of indecent liberties with a child for sexual acts he 

perpetrated against Jane, and four counts of aggravated indecent liberties with a child for 

those he committed against Mary. 

Martins' case proceeded to a jury trial during which Jane, Mary, and Martins each 

testified about their account of the alleged incidents. Mary explained that cuddling with 

her parents was a common occurrence but cuddling with her mother was distinctly 

different than how she cuddled with Martins. For instance, she cuddled with her mother 
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on the couch by laying her head on her mother's lap or shoulder and was always fully 

clothed in those moments. By contrast, she was "usually half-clothed" during encounters 

with Martins, and while he would cuddle with Mary on the couch, he also frequently 

invited her into his bed or invited himself into hers for cuddling. Mary's mother was 

usually in the room when Mary cuddled with Martins in her parents' bedroom, but only 

Mary and Martins were present when they cuddled in her basement bedroom. Martins 

encouraged Mary to be naked when they cuddled because he "liked the skin-to-skin 

contact and he felt closer to [her] whenever [they] were naked." 

Mary detailed those instances when Martins inappropriately touched her during a 

cuddle session. She could not recall the precise time frame for the first incident but 

narrowed it to when she was around 10 to 12 years old, after her breasts started to 

develop. Mary was clothed in pants but no shirt as she lay on top of Martins. At one point 

she felt him get an erection, so she quickly jumped off him. Martins took that opportunity 

to lean over and fondle Mary's breasts. Mary testified that while it felt "weird and 

uncomfortable," given their family dynamic she did not immediately process the touching 

as wrong. 

The next incident occurred during the fall of 2017 when Mary was 13 years old

and exited the shower to find Martins lying in her bed. Mary attempted to get dressed, but 

Martins insisted that she come cuddle with him. Mary relented and put on her underwear 

and then got into bed next to Martins. Martins simply laid next to Mary for a short while 

but then manually and orally fondled her breasts. Eventually he got up to leave and told 

her, "You look like you enjoyed that a little bit too much." Martins then slid his hand 

underneath Mary's underwear, digitally penetrated her vagina, and encouraged her to 

"keep [herself] shaved." Mary testified that she never told Martins to stop because she did 

not realize at that time that his conduct was an inappropriate act between father and 

daughter. 
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Mary indicated that a similar incident occurred about a year later when Martins 

touched her in an illicit manner in an effort to "'take the gay away'" because Martins had 

learned that Mary was in a relationship with another girl. Mary tried, on multiple 

occasions, to share her concerns about her father's actions with her mother, but her 

mother was dismissive and told Mary that she bore the responsibility to keep herself safe. 

Mary eventually confided in Jane about the incidents despite her parents' earlier warnings 

not to involve Jane and learned that Jane endured similar incidents with Martins. 

Finally, Martins took the stand to address the accusations. He testified that he 

began cuddling with the girls in their bed when they were around 5 or 6 years old. He 

acknowledged that the girls would occasionally be naked when they cuddled as 

teenagers, but he always wore underwear and sometimes a shirt and shorts. 

Next, Martins addressed Mary's accusations specifically, beginning with the 

incident that happened in the fall of 2017. According to Martins, Mary asked him to 

come into her bedroom. When he walked in, Mary was on the bed wearing only her 

underwear and purportedly asked Martins to kiss her breasts. Martins admitted that he did 

so intentionally and with a sexual motive but then felt ashamed, so he left the room. Later 

that night, Martins apologized to Mary about the incident. Martins claimed he eventually 

told his wife about the incident sometime later but could only bring himself to say it was 

an accident. Martins unequivocally acknowledged the dishonesty in that statement. 

Martins stated that Mary confronted him about the incident in January 2018, and 

angrily accused him of being a pedophile. He chose to sit silently. Later that evening, his 

wife asked Martins "if kissing [Mary's] breast was appropriate." He agreed that it was 

not. Martin later testified that he engaged in no other instances of sexual conduct with 

Mary.
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Following Martins' testimony, the case was turned over to the jury for deliberation

and it ultimately returned guilty verdicts for each of the five charges. Martins moved to 

set aside the verdict for Count 5 on the grounds it was identical to Count 4. With no 

opposition from the State, the court set aside the guilty verdict for Count 5 and dismissed 

the charge. 

Before sentencing, Martins filed a departure motion and requested a determinate 

grid sentence of 122 months' imprisonment instead of the 25 years to life sentence the 

Legislature established for a portion of his crimes of conviction. He outlined several 

factors that he believed provided the requisite substantial and compelling justification to 

grant his motion, including: (1) his lack of any criminal history; (2) his age reflects a low 

likelihood for recidivism; (3) he complied with offender registration; (4) he was on bond 

for over a year without any violations; (5) the victims are now adults and there is no need 

for Martins to have future contact with them; (6) he was a productive member of society 

with multiple jobs for the State of Kansas and Douglas County; (7) he and his wife 

provided foster care to over 60 children; (8) he suffers from Primary-Progressive 

Multiple Sclerosis and a caregiver may become necessary as his condition deteriorates; 

(9) he has a strong support network; and (10) he is willing to engage in cognitive-based 

programs for individuals with sexual behavior problems. 

The district court declined to find that Martins' case presented substantial and 

compelling reasons which warranted departure to a more lenient sentence and explained 

how it arrived at that conclusion. Specifically, the court was not persuaded that Martins' 

medical condition demanded leniency as he could receive care through the Department of 

Corrections. The judge acknowledged Martins' work history and its receipt of many 

letters of support for Martins but explained that is not novel and many sex offenders have 

support systems and function within the community despite their sexual misconduct. 

Next, the court opined that Martins' compliance with registration requirements and his 

success on bond do not mitigate his actions, nor did his years as a foster parent given that 
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he perpetrated sex acts upon his daughters. Finally, the district court observed that while 

the acts may have been less severe than those typically associated with this type of 

offense, one of the most important factors is the impact sexual abuse has on victims, and 

Martins' actions had a significant impact, potentially lifelong, on his daughters. 

Martins was sentenced to serve a prison term of 32 months for Count 1, lifetime 

imprisonment without the possibility of parole for 25 years for Count 2, 59 months in 

prison for Count 3, and 41 months in prison for Count 4. The district court ordered that 

all counts run concurrently for a controlling hard 25 years to life sentence. 

Martins timely brings his case before us for consideration of the claims of error he 

alleges occurred at trial which affect the validity of his convictions and sentence. 

LEGAL ANALYSIS

The prosecutor neither impermissibly commented on Martins' credibility nor shifted the 

burden of proof during closing arguments. 

In his first claim of error, Martins contends that he is entitled to reversal of his 

convictions because the State made improper remarks concerning his veracity and 

attempted to shift its responsibility to bear the burden of proof. The State counters that 

the challenged statements fell within the wide latitude afforded to prosecutors and, to the 

extent they could be classified as erroneous, any such error was harmless. 

Reviewing courts employ a two-step process to evaluate claims of prosecutorial 

error: error and prejudice. State v. Sieg, 315 Kan. 526, 535, 509 P.3d 535 (2022).

"To determine whether prosecutorial error has occurred, the appellate court must decide 

whether the prosecutorial acts complained of fall outside the wide latitude afforded 

prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that 
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does not offend the defendant's constitutional right to a fair trial. If error is found, the 

appellate court must next determine whether the error prejudiced the defendant's due 

process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional 

constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18, 

87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if 

the State can demonstrate 'beyond a reasonable doubt that the error complained of will 

not or did not affect the outcome of the trial in light of the entire record, i.e., where there 

is no reasonable possibility that the error contributed to the verdict.' [Citation omitted.]" 

State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

Prosecutors are graced with wide latitude in crafting arguments and drawing 

reasonable inferences from the evidence. Such statements must be accurate reflections of

the evidence and the law and cannot be used as a tool to inflame the passions or prejudice 

of the jury or otherwise divert its attention away from its obligation to decide the case 

based on the evidence and controlling law. State v. Bodine, 313 Kan. 378, 406, 486 P.3d 

551 (2021). 

When determining whether a particular statement transcends the State's 

permissible latitude, we consider the remark within the context in which it was made 

rather than attempt to analyze it in isolation. State v. Ross, 310 Kan. 216, 221, 445 P.3d 

726 (2019). In can be said that a prosecutor exceeds the boundaries of their approved 

zone when they express a personal belief concerning the credibility of a witness or 

segment of testimony presented at trial. Such comments are considered unsworn, 

unchecked testimony, as opposed to a legitimate commentary on the evidence of the case. 

State v. Gulley, 315 Kan. 86, 95, 505 P.3d 354 (2022). A prosecutor may, however, 

legitimately discuss the circumstances which cast a light on a witness' reliability or lack 

thereof. State v. Hilyard, 316 Kan. 326, 342, 515 P.3d 267 (2022). Finally, while Martins 

was not required to object during the trial to preserve this claim for appeal, on review we 

are permitted to consider the absence of an objection when analyzing whether error

occurred. See Bodine, 313 Kan. at 406. 
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Martins' first challenge arises from the portion of the State's closing argument 

captured below. It is his position that the italicized terms reflect an intent on the part of 

the prosecutor to share his personal, negative perception of Martins' credibility with the 

jury. 

"He was fuzzy on some details of the 2017 incident with [Mary], which constitutes 

Counts 3, 4 and 5. He testified that [Mary] presented herself to him. He told [his wife]

about the incident with [Mary]. But bear in mind that, by Timothy Martins' own 

testimony, he stated to you that he minimized this conduct when he told [his wife] about 

it. He minimized it and he said that he accidentally kissed [Mary]'s breasts. So he told part 

of what happened, but not all of what happened. That was by his testimony." (Emphases

added.) 

Notably, the record before us reflects that Martins' trial counsel took the 

opportunity to address these comments during his own closing remarks and stated: 

"One of the things you just heard Mr. Seiden say was that Mr. Martins minimized 

when he spoke to his wife. No, he didn't minimize. He flat out lied. Right? When you say 

you accidentally kissed someone's breast, when, in fact, he has since admitted he kissed it 

and it was wrong, that means what he told his wife was a lie. And that is tough to do." 

The trial transcript indicates that Martins admitted to the acts alleged in the 2017

incident and acknowledged that his conduct was intentional and sexually charged. When 

his attorney inquired whether Martins told his wife about the incident, Martins responded 

that he told his wife sometime later that he accidentally kissed Mary's breasts. Martins' 

attorney then asked whether his characterization of his conduct as an accident constituted 

a lie, and Martins responded in the affirmative.

Viewing the context in which the prosecutor made the statement, we comfortably 

conclude that the remark was merely a restatement of Martins' own testimony. That is, 

the State simply pointed out that, in effect, Martins minimized the incident when he told 
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his wife about the act but characterized it as an accident. We decline to find that the 

comments at issue impermissibly disparaged Martins' credibility and thereby fell outside 

the wide latitude afforded to prosecutors in crafting closing arguments.

Martins' second allegation of prosecutorial error consists of a claim that the State 

impermissibly shifted the burden of proof during its rebuttal closing statements. Proper 

analysis of his contention requires us to first step back and look at the statements Martins'

counsel made when addressing the jury at closing. The record bears out that Martins' 

attorney highlighted the fact that several individuals were not called to testify as 

witnesses for the State, including, Jane's friends, Mary's therapist, Mary's high school 

counselor, and various law enforcement officers involved in the investigation. On rebuttal 

the State addressed this alleged evidentiary deficiency: 

"People of the jury, Mr. Clarke has mentioned a number of witnesses and pieces 

of evidence that the State didn't put on: Dr. Teasdale, Dr. Teasdale's records and notes, 

[Mary]'s journal, the high school counselor, other law enforcement officers that 

responded in 2018, DCF, KVC, [Mary]'s friends. You know who else could have called 

those witnesses? You know who else could have put that evidence on? Mr. Clarke. If he 

believed any of that was going to be helpful, he could have certainly put that on."

According to Martins, the prosecutor's remarks were intended to communicate that 

Martins failed to present evidence to support the validity of his testimony, which he 

asserts is the functional equivalent of shifting the burden of proof back to Martins to 

prove his own innocence. While it is improper for the State to engage in such burden 

shifting, that does not occur when a prosecutor highlights evidentiary weaknesses in the 

defendant's case. State v. Watson, 313 Kan. 170, 176, 484 P.3d 877 (2021). Hand in hand 

with that principle is the prosecutor's ability to respond in kind when a defendant argues 

that the State's evidence is lacking because it neglected to introduce some piece of 

evidence. That is, the prosecutor acts well within the grace they are given when they 
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respond by "'informing the jury that the defense has the power to introduce evidence . . .

and subpoena witnesses.'" State v. Hachmeister, 311 Kan. 504, 516, 464 P.3d 947 (2020).

The Kansas Supreme Court addressed a similar issue in State v. Williams, 299 

Kan. 911, 329 P.3d 400 (2014). In that case, defense counsel argued in closing that the 

State failed to produce any witnesses identified by the victim who could corroborate her 

testimony. The prosecutor countered on rebuttal that Williams possessed subpoena power 

that was identical to that of the State. On review, the court found the prosecutor's remark 

was permissible because the State is allowed to refute claims by the defense that the 

State's failure to call a witness to corroborate the evidence undermines the credibility of 

its case. By arguing that a witness' absence weakens the State's position, the inference is 

that the witness would have been beneficial to the defense. Therefore, it is within 

prosecutorial parameters to address this purported inference by advising the jury that the 

defense also had the ability to call the witness if it would have been helpful to their case.

Williams, 299 Kan. at 937-41; see also State v. Naputi, 293 Kan. 55, 63-64, 260 P.3d 86 

(2011).

Here, the State walked the same path as the prosecutor in Williams. In doing so, it 

did not suggest or intimate that Martins was required to call the identified witnesses in 

order to disprove the acts alleged or to prove his own innocence. Rather, it engaged in an 

effort to rebut remarks made by defense counsel that Kansas courts have deemed 

permissible. See Williams, 299 Kan. at 940-41; Naputi, 293 Kan. at 63-64.

Because we are not persuaded that either of the alleged instances of prosecutorial 

error fell outside the wide latitude afforded to prosecutors, we need not engage in the next 

step of the analysis to determine whether any prejudice occurred. Martins' claim of 

prosecutorial error does not entitle him to relief.
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When the evidence is viewed in the light most favorable to the State, it is sufficient to 

sustain Martins' conviction of aggravated indecent liberties. 

Next, Martins argues the State failed to prove beyond a reasonable doubt that he 

was guilty of aggravated indecent liberties with a child as charged under Count 2, 

because it failed to establish that he engaged in any lewd fondling or touching and, to the 

extent he did so, that it was undertaken with any measure of specific sexual intent. The 

State counters that the testimony elicited from Mary and Martins was sufficient to enable 

the jury to conclude beyond a reasonable doubt that he engaged in lewd fondling or 

touching with the requisite intent. 

We analyze challenges made to the sufficiency of the evidence by reviewing the 

evidence in a light most favorable to the State and determining "'whether a rational 

factfinder could have found the defendant guilty beyond a reasonable doubt'" without 

reweighing the credibility of the evidence. State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 

576 (2021). "This is a high burden, and only when the testimony is so incredible that no 

reasonable fact-finder could find guilt beyond a reasonable doubt should we reverse a

guilty verdict." State v. Meggerson, 312 Kan. 238, 247, 474 P.3d 761 (2020). 

A verdict may be supported by circumstantial evidence if such evidence provides a 

basis for a reasonable inference by the fact-finder regarding the fact in issue. 

Circumstantial evidence, in order to be sufficient, need not exclude every other 

reasonable conclusion. State v. Colson, 312 Kan. 739, 750, 480 P.3d 167 (2021). A 

conviction of even the gravest offense can be based entirely on circumstantial evidence. 

State v. Pattillo, 311 Kan. 995, 1003, 469 P.3d 1250 (2020).
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Under Count 2, the State alleged that Martins committed aggravated indecent 

liberties with a child by fondling Mary's breasts when she was between 10 and 12 years 

of age. In order to sustain a conviction for that offense, the State carried the burden to 

prove the following elements beyond a reasonable doubt: 

"(3) engaging in any of the following acts with a child who is under 14 years of 

age:

(A) Any lewd fondling or touching of the person of either the child or the 

offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of 

either the child or the offender, or both." K.S.A. 21-5506(b)(3)(A). 

Martins claims the State failed to present sufficient evidence to demonstrate that 

he subjected Mary to lewd fondling or touching. It remains his contention, as it has been 

throughout this case, that it was merely an instance of the skin-to-skin contact that was 

common in their household and, as such, the touching was not motivated by any sexual 

desire. 

Physical contact violates the statutory provision if it meets the common meaning 

of the term, "lewd." That is, if the touch is: 

"'sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to

sensual desire or imagination; [or] indecent, obscene, or salacious.'" In considering if a

touch is lewd, a factfinder . . . should consider whether the touch 'tends to undermine the 

morals of a child [and] is so clearly offensive as to outrage the moral senses of a 

reasonable person.' [Citations omitted.]" State v. Reed, 300 Kan. 494, 500-01, 332 P.3d 

172 (2014).

The details of the offense at issue, as recounted through Mary's testimony, reflect 

an incident in which Mary was lying on top of Martins, wearing only her pants, until she 

felt him get an erection, which prompted her to get up. Once she was upright, Martins 
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took the opportunity to fondle Mary's bare breasts then pinch and roll her nipples 

between his fingers. 

In addition to the account provided by Mary, the jury had the benefit of Martins' 

seemingly inconsistent perceptions of nudity in the home and physical expressions of 

affection. For example, Martins testified that his wife was raised in a home with a more 

liberal lifestyle where nudity was a common, accepted practice. Thus, "she was 

comfortable with that type of lifestyle. [He] was not." Martins also testified that he and 

his wife would share kisses on the lips as they sat on the couch which he described as 

"new to [him]." Both of those segments of his testimony are at odds with his other 

assertions that naked skin-to-skin contact with his teenaged daughter was merely familial 

affection.

We recognize that Martins denies this incident ever occurred, but our standard of 

review directs that we are to review the evidence in the light most favorable to the State 

and not subject it to reweighing or any reassessments. When we do so, we are convinced 

it is sufficient to allow a reasonable fact-finder to conclude that the touching undermined 

Mary's morals and would outrage the moral senses of a reasonable person. Martins' 

conduct far exceeded harmless touching or an acceptable expression of familial affection 

between a parent and their child. 

Our conclusion is informed by a somewhat analogous case. In Reed, the defendant 

was accused of entering the victim's bedroom and, while she was fully clothed, rubbed 

his groin against her buttocks and lower back. He also isolated a second victim during a 

family barbecue, so he could manually touch and rub his groin against her buttocks. The 

victims' testimony was the only evidence the State put forth to prosecute the charges, and 

the jury returned a guilty verdict. On appeal, the Kansas Supreme Court found that a 

rational fact-finder could conclude that a touching of the sort alleged would undermine 
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the morals of the underage victims and outrage the moral senses of a reasonable person. 

Reed, 300 Kan. at 501-02.

The conduct Martins engaged in shares similarities with the sexual acts analyzed 

in Reed. We are satisfied that Martins' touches can be clearly characterized as indecent, 

obscene, salacious, unchaste, or licentious. Accordingly, we reject his claim that the State 

failed to present sufficient evidence to prove that the acts he perpetrated against Mary

constituted lewd fondling or touching.

The second prong of Martins' deficient evidence claim focuses on the intent 

element of the offense. He contends that the State failed to present sufficient evidence to 

prove that when he touched Mary, he did so with the intent to satisfy the sexual desires of 

himself, Mary, or both as required by K.S.A. 21-5506(b)(3)(A). He takes the position that 

because cuddling and skin-to-skin contact were common occurrences between him and 

Mary, the incident at issue was not sexual in nature, and thus, there was no intent to elicit 

arousal. 

Actual arousal or satisfaction of the child or offender's sexual desires is 

unnecessary. State v. Brown, 295 Kan. 181, 201, 284 P.3d 977 (2012). Rather, the intent 

to elicit such desire may properly be shown by circumstantial evidence. State v. Clark, 

298 Kan. 843, 850, 317 P.3d 776 (2014). Circumstances which demonstrate a sexual 

intent may include but are not limited to: (1) a pattern or history of touching over time; 

(2) the places on the body touched; (3) the nature of the touching; (4) the defendant's

consciousness of guilt; (5) a desire for secrecy; and (6) the isolation of the victim. See 

Reed, 300 Kan. at 503 (evaluating evidence of these factors); Clark, 298 Kan. at 850 (list 

of nonexclusive factors).

Mary's testimony that Martins developed an erection immediately before the 

touching is clear evidence of Martins' actual arousal, and a jury could reasonably 
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conclude that the subsequent fondling was drawn from Martins' intent to satisfy his 

present sexual desires. Next, we believe that the fact this incident occurred while Martins 

was alone with Mary in her bedroom is another significant factor in the intent equation. 

Finally, we find the precise, erotic nature of the fondling compelling, particularly where a 

jury is specifically instructed it is permitted to use its common knowledge and experience 

when deliberating over the charges. It is conduct of the sort that falls well outside the 

scope of that which is familial and harmless. Viewing this evidence in the light most 

favorable to the State, we are convinced it is sufficient to support a finding of sexual 

intent.

Mary's testimony, as well as Martins' personal statements, provided sufficient 

evidence from which a reasonable fact-finder could conclude, beyond a reasonable doubt,

that Martins subjected her to lewd fondling that was motivated by a sexual intent. 

Accordingly, his conviction for aggravated indecent liberties with a child as charged in 

Count 2 is affirmed.

The district court did not abuse its discretion when it denied Martins' request for a 

durational departure to a grid sentence for his Jessica's Law offense.

In his final point of error, Martins argues that given the various substantial and 

compelling reasons he presented to the district court in support of his departure request,

no reasonable person would have denied his motion. The State responds that the denial 

was reasonable and appropriate considering the harm that Martins caused his victims. 

The legislatively established penalty under Jessica's Law, as set forth in K.S.A. 21-

6627, generally provides for a sentence of 25 years to life for first time offenders of the 

select sexual offenses included within its scope. The statute, however, expressly 

authorizes and provides a procedure for imposing a departure sentence from the 

mandatory minimum sentence of 25 years. See K.S.A. 21-6627(d). If it is the offender's 
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first Jessica's Law conviction, the district court may depart from the mandatory minimum 

term and impose a sentence under the Kansas Sentencing Guidelines Act (KSGA) if, 

"following a review of mitigating circumstances," the court finds substantial and 

compelling reasons to do so. K.S.A. 21-6627(d)(1); State v. Powell, 308 Kan. 895, 902, 

425 P.3d 309 (2018).

When presented with a departure motion in cases of this nature, the district court 

must first review the mitigating circumstances without any attempt to weigh them against 

any aggravating circumstances. Then it makes a determination, based upon all the facts of 

the case, whether the mitigating circumstances rise to the level of "'substantial and 

compelling reasons'" to depart from the mandatory minimum sentence. Powell, 308 Kan. 

at 913-14 (citing State v. Jolly, 301 Kan. 313, 324, 342 P.3d 935 [2015]). The district 

court does not need to affirmatively articulate that it refrained from weighing mitigating 

and aggravating circumstances. Powell, 308 Kan. at 908.

On appeal, we review a district court's denial of a departure under Jessica's Law 

for an abuse of discretion. Powell, 308 Kan. at 902. An abuse of discretion occurs when 

the decision under review turns on an error of law, is not supported by substantial 

competent evidence, or amounts to one with which no reasonable person would agree. 

Martins, as the party alleging an abuse of discretion, bears the burden to demonstrate that 

such abuse occurred. See State v. Galloway, 316 Kan. 471, 476-77, 518 P.3d 399 (2022).

To grant a departure request, the district court must find at least one factor that is 

"substantial and compelling." State v. Montgomery, 314 Kan. 33, 37, 494 P.3d 147

(2021). However, "even though mitigating circumstances must be present for a finding of 

substantial and compelling reasons, mitigating circumstances do not necessarily equal 

substantial and compelling reasons." Jolly, 301 Kan. at 323. The Kansas Supreme Court 

has held the term substantial to mean "'something that is real, not imagined, and of 

substance, not ephemeral,'" and a compelling reason to be "'one that forces a court—by 
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the case's facts—to abandon the status quo and venture beyond the presumptive 

sentence.'" State v. Grable, 314 Kan. 337, 345, 498 P.3d 737 (2021) (quoting State v. 

Morley, 312 Kan. 702, Syl. ¶¶ 3-4, 479 P.3d 928 [2021]). 

Although Martins asserted several statutory and nonstatutory mitigating factors in 

support of his motion before the district court, only the following factors were carried 

over into his appeal: (1) lack of criminal history, (2) employment history, (3) poor 

health, (4) strong support system, and (5) success on bond as a registered offender. Those 

not presented to us for consideration are abandoned and will not be considered in our 

analysis of the issue. See State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (Issues 

not adequately briefed are deemed waived or abandoned and should not be considered by 

the reviewing court.). We will address each preserved factor in turn.

Martins' lack of criminal history is one of the statutorily recognized mitigating 

circumstances that can support a departure sentence in a Jessica's Law case. K.S.A. 21-

6627(d)(2)(A). This fact is supported by the presentence investigation report, which 

reflects that Martins has no prior convictions and therefore has the lowest criminal 

history score of 'I.' But the existence of this factor alone does not automatically justify or 

mandate a departure. See Jolly, 301 Kan. at 323; State v. Cipra, No. 125,211, 2023 WL 

5992501, at *3 (Kan. App. 2023) (unpublished opinion).

The remainder of Martins' assertions are nonstatutory mitigating factors. When 

reviewing whether a sentencing court erred in denying a departure based on a 

nonstatutory factor, the appellate court must determine whether the nonstatutory factor's 

existence is supported by the record. Morley, 312 Kan. at 711.

Turning to Martins' consistent employment history, we note it included positions 

with law enforcement and government agencies. The district court reasoned this was not 

substantial or compelling because many offenders can function within society despite 
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their sexual misconduct. Moving to the matter of Martins' health, the district court 

determined that the factor did not clear the substantial or compelling threshold because it 

did not excuse his actions. Next, the district court recognized the numerous letters it 

received as a show of support for Martins. However, it was not persuaded and instead 

observed that many sex offenders have strong support systems despite their actions. 

Finally, Martins asked the court to consider his performance or behavior while on bond in 

this case. The court acknowledged the accuracy of the statement, but nevertheless 

declined to find that it rose to the level of a substantial and compelling reason to depart 

from the statutorily mandated sentence. 

The district court specifically addressed each of the mitigating factors Martins put 

forth. Its opinion of their compelling character simply differed from that of Martins as it 

found that none of them were substantial or compelling considering that the facts of the 

case aligned with the legislative intent motivating life sentences for these offenses. The 

district court recognized the merit and need for a departure from off-grid sentences in 

certain instances. But in the context of child sex crimes, it found the most important 

factor leading to the establishment of the sentence is the impact the sexual misconduct 

has on the victim, and Mary specifically testified at sentencing about the trauma Martins' 

actions would cause her throughout her life. Thus, from the district court's perspective, 

the harm caused by Martins' actions demonstrated why the legislatively provided for 

sentence was particularly appropriate here and why the proffered mitigating factors were 

insufficient to prove otherwise. 

On appeal, Martins simply recites the same mitigating factors and seemingly 

offers their mere existence as a reason to find the district court's decision was 

unreasonable. He does not explain how or offer any argument to support why those same 

factors are substantial or compelling beyond mere conclusory statements. Nor does he 

affirmatively seek to establish why the district court's conclusion was erroneous when 

compared with those factors. Accordingly, Martins has failed to meet his burden to prove 
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the district court's decision was unreasonable. The district court's conclusion that no 

substantial and compelling reason existed to depart from the status quo and that the 

Jessica's Law sentence was appropriate is upheld.

Affirmed.