Opinion
No. 106,897.
2012-06-22
In the Matter of T.T.R.
Appeal from Sedgwick District Court; Bruce C. Brown, Judge. Laura B. Shaneyfelt, of Shaneyfelt Law, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Bruce C. Brown, Judge.
Laura B. Shaneyfelt, of Shaneyfelt Law, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM:
T.T.R. is a juvenile who entered an Alford [ North Carolina v. Alford, 400 U.S. 25, 37–38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970),] plea to charges of misdemeanor assault and aggravated battery. On appeal, he argues that the trial court lacked substantial competent evidence to determine, beyond a reasonable doubt, that those crimes were sexually motivated. We agree. We vacate in part and remand with directions to vacate that part of T.T .R.'s sentence which stated that his offenses were sexually motivated.
The State filed a complaint alleging that T.T.R. committed aggravated indecent liberties on several occasions in 2009 and 2010 against three different girls. The girls were the children of T.T.R .'s mother's boyfriend. In accordance with plea negotiations, the State filed an amended complaint alleging that T.T.R. had committed two crimes against the eldest victim: aggravated battery, in violation of K.S.A. 21–3414(a)(2)(B), and misdemeanor assault, in violation of K.S.A. 21–3408.
On July 25, 2011, T.T.R. entered an Alford plea, in which he pled guilty despite “not admitting his guilt” to the two crimes specified in the amended complaint. The State specified the remaining terms of the oral plea agreement:
“The Respondent's also going to agree to obtain a Sex Offender Evaluation and a J–SOAP [Juvenile Sex Offender Assessment Protocol] screening and follow all those recommendations. He also agrees not to have any contact with the victims charged in the original Complaint.... And also at sentencing the State will not object to the Respondent being placed on probation, but the parties agree he should submit to a YLS/CMI [Youth Level of Service/Case Management Inventory] at the discretion of the Court Service Officer. He also agrees not to access any pornographic websites via the internet. He's also going to agree to follow all the terms and conditions of probation as well.”
The court accepted the plea agreement and ordered court services to prepare a presentence investigation report. When interviewed by a court services officer, T.T.R. and his mother denied the sexual molestation allegations specified in the original complaint. T.T.R. and his mother believed that the three girls had made up the allegations to derail the mother's relationship with their father.
Dr. Bruce Nystrom performed the Juvenile Sex Offender Assessment screening. T.T.R. and his mother denied that T.T.R. had sexually molested the three girls. Based on these screening and other assessments, Dr. Nystrom could find “no other indications of other sexual acting out or sexual pathology” by T.T.R. Dr. Nystrom concluded:
“Given the denial of any sexual offending and the nature of the charges against [T.T.R.] along with the general lack of indication of other behavior problems there were no indications of a risk for sexual reoffending; this conclusion would of course be different if there was confirmation of sexual offending.”
Dr. Nystrom further concluded that T.T.R. “is not seen as a candidate for sex offender treatment” and that his “psychological test results and behavior history do not indicate a need for psychotherapy or psychotropic medication.” Yet, Dr. Nystrom believed T.T.R. might benefit from supportive counseling and that his probation should be closely supervised. Dr. Nystrom's findings were incorporated into the presentence investigation report, which recommended that T.T.R. be placed on a 12–month term of standard probation and not have any contact with the three alleged victims mentioned in the original complaint. The presentence investigation report, however, did not recommend T.T.R. be placed on any sort of probation or treatment program tailored to serve sex offenders or potential sex offenders. The report also noted that T.T.R. had no criminal history.
At the sentencing hearing, the State concurred with the recommendations specified in the presentence investigation report. Although the State did not request that the court place T.T.R. in a sex offender treatment program, the State requested that he be prohibited from accessing internet pornography. T.T.R.'s counsel, however, questioned whether that was a necessary condition because there was no indication that T.T.R. had ever accessed any pornography.
The trial court mentioned the serious allegations of child molestation which had been made against T.T.R. Moreover, the trial court noted that the girls “gave consistent statements to the police about inappropriate touching and sexual touching.” The court further talked about the horrendous impact of sexual offenses on victims and the community at large. The court added that youths seldom have a motive to falsely allege they have been sexually abused. Moreover, the court stated that it believed the three girls' statements to police to be credible. The court further opined that perhaps T.T.R. had been a victim of sexual abuse.
The court criticized Dr. Nystrom's report, believing it to be “extremely disappointing” because its findings appeared to be largely and improperly based on T.T.R.'s and his mother's denial of sexual molestation allegations. The court said, “That means ... you could take a child molester that's molesting dozens of people and if they go in to Dr. Nystrom and claim, no, never happened, then he's going to say no need for sex offender treatment.” The court further explained that such reasoning was “not typical” for the juvenile sex offender assessments.
The court ultimately determined, beyond a reasonable doubt, that T.T.R.'s aggravated battery and misdemeanor assault convictions were sexually motivated. Consequently, the court ordered T.T.R. to complete a sexual offender treatment program, and, if he failed to complete the program, he would be placed on a private sex offender registry. T.T.R.'s counsel objected on the basis that no evidence had been presented to support the court's finding that the crimes were sexually motivated. Counsel added that if T.T.R. could not successfully complete the sexual offender treatment program, he would request an evidentiary hearing to assess the credibility of the three girls' statements that were recorded in the affidavit.
The court clarified that it based its decision on the complaint and the presentence investigation report that incorporated Dr. Nystrom's findings. But the court added the ages of the three girls and the consistency of their statements to police helped support the court's decision. The State interrupted the court, clarifying that “the only factual basis provided to the Court for the guilt finding was the amended information ... so no affidavit was ever submitted to the Court.” The court agreed and reiterated its reliance on the presentence investigation report.
Did the Trial Court Err by Determining That T.T.R.'s Crimes Were Sexually Motivated?
A. Standard of Review
When reviewing a trial court's finding that an offense was sexually motivated under the provisions of Kansas Offender Registration Act (KORA), this court determines whether that finding of fact is supported by substantial competent evidence. State v. Chambers, 36 Kan.App.2d 228, 239, 138 P.3d 405 (2006). Substantial evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can reasonably be determined. Specifically, substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007).
B. Application
T.T.R. argues that the trial court lacked substantial competent evidence to find, beyond a reasonable doubt, that his aggravated battery and misdemeanor assault crimes were sexually motivated.
Under K.S.A.2009 and 2010 Supp. 22–4902(b), a sex offender includes any person “adjudicated as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime set forth in subsection (c).” Under a catch-all provision of this statute, a sexually violent crime includes:
“any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in this subparagraph, ‘sexually motivated’ means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant's sexual gratification.” K.S.A.2009 Supp. 22–4902(c)(15) and K.S.A.2010 Supp. 22–4902(c)(16).
Also, a juvenile who is adjudicated of a sexually violent crime may be required to register as a sex offender. See K.S.A.2010 Supp. 22–4906 and K.S.A. 22–4906.
T.T.R. compares the facts of his case to those in State v. Young, No. 97,948, 2008 WL 2186173 (Kan.App.2008) (unpublished opinion). There, the defendant was initially charged with lewd and lascivious conduct but pled guilty to one count of aggravated assault in the amended complaint, which served as the factual basis for the plea. The State, however, did not furnish the trial court with any additional information regarding how the crime was committed or whether the crime was sexually motivated. Despite these factual shortcomings, the trial court held that Young's aggravated assault crime was sexually motivated. In reaching this conclusion, the court apparently considered an unsworn statement from the victim herself and a presentence investigation report that included a police affidavit, which graphically described Young's encounter with the victim.
This court reversed the trial court's ruling. Citing State v. Schweigert, No. 91,483, 2005 WL 2076470 (Kan.App.2005) (unpublished opinion), the Young court held that the State had failed to present substantial competent evidence that the defendant committed a sexually motivated crime. 2008 WL 2186173, at *5. Such evidence, this court observed, must amount to “more than the prosecutor's unsworn statements relating hearsay and the victim's unsworn statements.” 2008 WL 2186173, at *5.
Moreover, this court criticized the affidavit used against the defendant, observing that the police officer—but not the victims—wore to the statements contained in affidavit. This court also noted that the officer was not present at the defendant's sentencing hearing. 2008 WL 2186173, at *5. Finally, the Young court noted that these factors were inconsistent with Schweigert, which observed that “the defendant must have the opportunity to confront any witnesses against him.” 2008 WL 2186173, at *5.
The factual similarities and reasoning of Young lend strong support to T.T.R.'s appeal. In the present case, the trial court apparently read and relied on the affidavit at T.T.R.'s sentencing hearing. Specifically, the trial court stated that the affidavit showed that the three girls' allegations of sexual abuse to be credible. T.T.R., however, entered an Alford plea. Consequently, he never admitted to the court to any of the allegations contained in the affidavit. See State v. Case, 289 Kan. 457, 467–69, 213 P.3d 429 (2009) (reversing district court's ruling that the defendant's crime was sexually motivated because his Alford plea was not an admission to the stipulated factual basis of his plea). T.T.R. and his mother also denied the sexual abuse allegations when interviewed by both the court services officer and Dr. Nystrom. In fact, the State even reminded the court that no affidavit “was ever submitted to the court” and that “the only factual basis provided to the court for the guilt finding was the amended information.”
The State, however, argues that the “sentencing court is entitled to consider all relevant information in determining whether an offense is sexually motivated.” Even assuming this court can consider the affidavit to support the trial court's ruling, this runs counter to what this court has held in previous decisions. Young and Schweigert make clear that victims' unsworn statements alone cannot constitute substantial competent evidence for a trial court to rule that a defendant has committed a sexually motivated crime. 2008 WL 2186173, at *5. Yet, the trial court seemed to rely solely on the affidavit without any external corroboration concerning its credibility and without giving T.T.R. an opportunity to elicit testimony in court from the three girls who claimed that T.T.R. had sexually abused them.
The State also argues that the presentence investigation report, which incorporated the findings of Dr. Nystrom, satisfied the substantial competent evidence standard when considered alongside the affidavit. But on closer inspection, this report carries little weight, and, if anything, favors T.T.R.'s position. The State notes that the presentence investigation report indicated that the three girls had alleged that T.T.R. had sexually molested them and that such allegations were also cited in Dr. Nystrom's report. But these allegations were cumulative with those allegations already incorporated in the affidavit. The allegations listed in the presentence investigation report and the report of Dr. Nystrom add nothing to the truth or falsity of these allegations. Moreover, in separate interviews with the court services officer and Dr. Nystrom, both T.T.R. and his mother continued to deny the allegations of sexual abuse.
More important, the presentence investigation report and Dr. Nystrom's findings ultimately concluded in T.T.R.'s favor. The court services officer reported that T.T.R. had no other known arrests or criminal charges and, based on his YLS/CMI results, categorized him as low-risk. Meanwhile, Dr. Nystrom concluded that T.T.R. evidenced “no other indications of other sexual acting out or sexual pathology,” T.T.R. did not demonstrate any “other indications of a risk for sexual reoffending,” and he was “not seen as a candidate for sex offender treatment.”
Consequently, the trial court lacked substantial competent evidence to find, beyond a reasonable doubt, that T.T.R.'s aggravated battery and misdemeanor assault crimes were sexually motivated. He consistently maintained his innocence by entering an Alford plea and by denying the sexual abuse allegations in later interviews and evaluations by a court services officer and Dr. Nystrom, who concluded that T.T.R. did not seem to be a sexual offender. Because T.T.R. entered an Alford plea, the only facts admitted into evidence were T.T.R.'s acquiescence to the charges specified in the amended complaint. Although the affidavit, which has not been included in the record for appellate review, seems to corroborate all three girls' allegations of sexual molestation, the Young and Schweigert decisions make clear that an affidavit, especially one unsworn by the witnesses alleging the crime, cannot constitute sufficient evidence for a trial court to rule that a crime was sexually motivated. Thus, the trial court erred in determining that T.T.R.'s crimes were sexually motivated.
Vacated in part and remanded with directions.