Opinion
No. 106,719.
2012-06-8
In the Matter of D.R.
Appeal from Sedgwick District Court; Bruce C. Brown, Judge. Catherine A. Zigtema and Sean M.A. Hatfield, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Bruce C. Brown, Judge.
Catherine A. Zigtema and Sean M.A. Hatfield, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PIERRON, J.
D.R. pled guilty in juvenile court to a reduced charge of lewd and lascivious behavior. At sentencing, the district court sentenced him to 18 months of intensive supervised probation and also ordered his name to be added to the private sex offender registration. D.R. argues the State violated the plea agreement and the court erred in imposing the registration requirement. We reverse and remand.
On November 16, 2010, D.R. was charged in juvenile court with one count of aggravated indecent liberties, a severity level 3 person felony, in violation of K.S.A. 21–3504. The sworn charging affidavit in support of the alleged crime stated as follows:
“After reading the reports of the officers involved, your affiant has learned the following information: On Saturday, November 13, 2010, Detective Virgil Miller # 1468 interviewed CJT, a four year old female born in 2006. Detective Miller used the Cornerhouse body diagrams to have CJT name various parts of the body, including the “boo boos,” “butt” and “butt” as the names for female breasts, vagina area and buttocks. She identified the various parts on the male diagram including the “boo boos,” “tail” and “butt” as the names for the male breasts, penis and buttocks. CJT described an incident that had occurred while in her mother's home, located ... within Wichita, Sedgwick County Kansas, that involved [D.R.] who was later identified as [D.R.]. CJT told Detective Miller that [D.R.] was lying on the couch watching “Darth Vader” on his back and she was lying on her back when he put his hand into her pants and touched her butt. CJT pointed at the vagina area of the girl diagram when asked to clarify. CJT explained that [D.R.] touched her on the skin of her butt with his fingers. CJT said that he did not put his finger into her butt. CJT also said that [D.R.] touched her butt, as she pointed to the buttocks area of the girl diagram. CJT was able to demonstrate the touches using the forensic dolls that were presented to her.
“[C.R.-D.R.'s step-mother] said that on the evening of Friday, November 12, 2010, CJT and [D.R.] were in the living room area ... watching a science fiction movie that she thought was called Avatar. She did not see any inappropriate activity and was unaware of the accusation until [P.T.] called to meet with her and told her what had happened. [P.T.] was told by CJT, after CJT was seen touching herself on the vagina, that she had been touched on her vagina by [D.R.], a person known to [P.T.] as the step-child of [C.R .] and living in her home.
“[D.R.] was also interviewed by Detective Miller after he was provided with his Miranda warnings. [D.R.] said that CJT will frequently come to him and kiss him on the check and wrestle with him and he will tell her to stop. [D.R.] did say that they had been on the couch together watching Avatar on Friday, November 12, 2010, but he does not remember ever watching a movie or cartoon with a “Darth Vader” character with CJT. [D.R.] denied any sexual contact with CJT.”
On April 11, 2011, the parties entered a plea agreement that D.R. would plead no-contest to a reduced charge of lewd and lascivious behavior, a severity level 9 person felony, in violation of K.S.A. 21–3508(a)(2). Additionally, the parties agreed on a minimum of 18 months' intensive supervised probation and the State would not request sex offender registration. At the sentencing hearing, the district court sentenced D.R. to 18 months' intensive supervised probation, ordered that he complete a sex offender treatment program, and required that D.R. be added to the private sex offender registration. The State made no comment at the sentencing hearing concerning the sex offender registration.
D.R. filed a motion for reconsideration of the district court's decision to require him to register as a sex offender. He argued his conviction was not of a crime that per se required registration and the court erred in applying the catch-all provision of K.S.A.2010 Supp. 22–4902(c)(14) to his crime because it contravened the plain meaning of the registration statute. The State responded that the court had the authority to require registration under the catch-all provision of K.S.A.2010 Supp. 22–4902(c)(14) and there was no error in the court's finding that D.R.'s offense was sexually motivated beyond a reasonable doubt. The district court held a hearing on D.R.'s motion for reconsideration and the State acknowledged that the plea agreement was for no registration, but then it argued that the sentence was legal and the motion should be denied.
The district court agreed with the State and denied D.R.'s motion, finding that there was evidence beyond a reasonable doubt that his crimes were sexually motivated. The district court relied on several factors: (1) the stipulated factual basis; (2) the age disparity between D.R. and the victim; (3) actual touching of the victim; (4) D.R. had been terminated from the residential facility due to inappropriate sexual gestures toward female staff; (5) D.R. failed to take responsibility for his actions, and (6) he showed little remorse or empathy toward the victim.
We will first address D.R.'s argument that the district court erred by requiring him to register as a sex offender under the catch all provisions of the sex offender registrations statutes. If D.R.'s argument on this point is correct, the issue of whether the State violated the plea agreement is rendered moot.
The issue before us is primarily one of statutory interpretation of the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. over which we exercise unlimited review. Thus, we give no specific deference to the district court's interpretation of the statute. State v. Finch, 291 Kan. 665, Syl. ¶ 2, 244 P.3d 673 (2011). Our goal is to determine the legislature's intent through the statute's language, which is generally done by giving ordinary words their ordinary meaning. 291 Kan. 665, Syl. ¶ 2.
Very recently, the Kansas Supreme Court addressed the issue of unlisted sex-related offenses and the catch-all provision of KORA, K .S.A. 22–4902(c)(14), in State v. Coman, 294 Kan. 84, 273 P.3d 701, (2012). The defendant in Coman pled guilty to misdemeanor criminal sodomy. Misdemeanor criminal sodomy is not listed as a per se “sexually violent crime” in the KORA, and the question in Coman was whether the district court could use the catch-all provision of K.S.A. 22–4902(c)(14) to require sex offender registration for unlisted sex crimes that are found to be sexually motivated. The court found that Coman was required to register because his acts of bestiality were sexually motivated. The Court of Appeals had affirmed the trial court in State v. Coman, 42 Kan.App.2d 592, 214 P.3d 1198 (2009).
The Kansas Supreme Court reversed both the trial court and the Court of Appeals. The Coman court attempted to interpret the legislature's intention in K.S.A. 22–4902 and the fact that misdemeanor criminal sodomy is specifically addressed in the age restricted section of KORA in K.S.A. 22–4902(a)(5)(B) and the other forms of felony criminal sodomy are listed as per se registrable offenses in K.S.A. 22–4902(c).
The Coman court pondered the following question: “Why carve out a registration requirement where the victim is age 16 or 17, if the catch-all provision is intended to pull in all sexually motivated defendants anyway?” 273 P.3d 708. The Coman court found on the one hand the fact that the legislature deleted a list of nonsex crimes and added the catch-all provision could indicate that the legislature intended the catch-all to apply only to nonsex crimes. The court found on the other hand that when the legislature removed all misdemeanor sex crimes from the list of per se crimes—and at the same time added the catch-all provision—this could mean the registration requirement was either for the more serious felony crimes or was to apply to the misdemeanors as well as the deleted nonsex crimes. The Coman court threw its hands up and concluded: “[T]he point is that the legislative history does not inform us as to the legislature's intent with respect to the interaction between subsections (c)(4) and (c)(14).” 273 P.3d at 708–09.
The Coman court found there were two reasonable and sensible interpretations of the applicable sections of the KORA, and the rule of lenity required an interpretation in favor of the accused.
“To summarize, we hold that a person who commits misdemeanor criminal sodomy as defined in K.S.A. 21–3505(a)(1) is not required to register as a sex offender under the provisions of either K.S.A. 22–4902(c)(4) or (c)(14). Rather, the provisions of K.S.A. 22–4902(a)(5)(B) govern when a person who has violated K.S.A. 21–3505(a)(l) must register under KORA. Here, the defendant was not required to register, and the district court erred in so ordering.” 273 P.3d at 709.
The principals of Coman apply equally to the case at bar. The crime of lewd and lascivious behavior is not listed as a per se sexually violent offense that requires registration under K.S .A.2010 Supp. 22–4902(c)(1)–(c)(16). Pursuant to Coman, the catch-all provision of K.S.A.2010 Supp. 22–4902(c)(16) does not encompass lewd and lascivious behavior because the legislature has provided for that offense in K.S.A.2010 Supp. 22–4902(a)(5)(E) and a conviction for lewd and lascivious behavior is not a registrable offense unless “one of the parties involved is less than 18 years of age.”
Consequently, the district court erred in requiring D.R. to register. As a result, the issue of whether the State violated the terms of the plea agreement is rendered moot as the order requiring D.R. to register is vacated.
Reversed and remanded with directions to vacate the order requiring D.R. to register as a sex offender.