Opinion
No. 105,837.
2012-07-6
STATE of Kansas, Appellee, v. Jeff S. DRACH, Appellant.
Appeal from Sedgwick District Court; Eric R. Yost, Judge. Charles A. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric R. Yost, Judge.
Charles A. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jeff S. Drach appeals his conviction of electronic solicitation in violation of K.S.A. 21–3523(a)(l), challenging the venue for the proceedings and the sufficiency of the evidence to support his conviction. Concluding that the charged offense has at least two acts, one of which was committed in Sedgwick County, and that the evidence was sufficient despite the actual age of the person solicited, we affirm his conviction.
Factual and Procedural Background
When a Wichita adult female detective posed in a Yahoo romance chat room as “Alicia,” a 14–year–old female, an individual utilizing the screen name “cups009” contacted her and engaged her in a conversation through the Internet. In that conversation, “Alicia” identified herself to the individual as 14 years old. After requesting and referring to a photograph of “Alicia,” the individual asked “Alicia” if she would allow him to perform oral sex on her.
A search warrant executed on Yahoo revealed the individual utilizing “cups009” was Drach, a 33–year–old adult male residing in Hutchinson. Drach was eventually taken into custody and charged with one count of electronic solicitation as a result of his chat with “Alicia” during which he requested she submit to the unlawful sex act of criminal sodomy.
Prior to trial, Drach challenged venue of the prosecution in Sedgwick County on the ground that the sexually explicit message was sent from Drach's computer in Reno County. The district court denied this motion, concluding the prosecution was proper in either Sedgwick or Reno County. The case proceeded to bench trial on stipulated facts, and the defendant was found guilty. He was thereafter sentenced to 29 months' imprisonment. Drach appeals.
Was the Prosecution Proper in Sedgwick County?
Drach argues the district court erred in determining Sedgwick County was a proper venue for his prosecution. Specifically, he claims K.S.A.2006 Supp. 21–3523(a) is phrased in a manner that criminalizes sexually predatory communication without requiring a third party to receive or perceive the communication. Therefore, Drach contends, Reno County was the only proper venue for his prosecution because that's where he was physically located when he made the communication.
Our standard of review is de novo because venue is jurisdictional; thus, this issue challenges the subject matter jurisdiction of the district court. See State v. Calderon–Aparicio, 44 Kan.App.2d 830, 837, 242 P.3d 1197 (2010), rev. denied 291 Kan. 913 (2011) (venue is jurisdictional); see also State v. Jackson, 280 Kan. 16, 20, 118 P.3d 1238 (2005), cert. denied546 U.S. 1184 (2006) (subject matter jurisdiction is reviewed de novo). The question turns on our interpretation of K .S.A. 21–3523, and that issue is also subject to de novo review. State v. Kleypas, 282 Kan. 560, 566, 147 P.3d 1058 (2006). Generally, venue is a question of fact for the jury to determine in the trial of the case in chief and may be established by proof of facts and circumstances introduced in evidence from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred. Calderon–Aparicio, 44 Kan.App.2d at 837.
The statutory authority conferring venue in criminal prosecutions is found at K.S.A. 22–2601 et seq. K.S.A. 22–2602 articulates the general rule: “Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed.” K.S.A. 22–2603, however, provides: “Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any such acts occur.”
Drach was charged with a violation of K.S.A.2006 Supp. 21–3523(a), which defines electronic solicitation as follows:
“Electronic solicitation is, by means of communication conducted through the telephone, internet, or by other electronic means:
(1) Enticing or soliciting a person whom the offender believes to be a child under the age of 16 to commit or submit to an unlawful sexual act; or
(2) enticing or soliciting a person whom the offender believes to be a child under the age of 14 to commit or submit to an unlawful sexual act.” (Emphasis added.)
We conclude that the offense defined by K.S.A. 21–3523(a) requires a communication of an electronic solicitation to one perceived by the offender to be under a specified age to commit or submit to an unlawful sexual act, which involves both the communication of such a solicitation and the comprehension of that solicitation by another perceived by the offender to be a child under the specified age. Although Drach posted his solicitation in Reno County, it was comprehended by the person perceived to be underage in Sedgwick County. Thus, an act comprising a constituent and material element of criminal threat was committed in Sedgwick County, and venue was proper there for the prosecution.
Our Supreme Court reached a similar conclusion regarding K.S.A.2006 Supp. 21–3119, criminal threat, in State v. Woolverton, 284 Kan. 59, 68–70, 159 P.3d 985 (2007). There, the court concluded that a “ ‘threat to ... [c]ommit violence communicated with [specific] intent’ “ required both a declarant and a receiver.” 284 Kan. at 69. The court's rationale was based in large part on an interpretation of the term “communicate,” which is also used in K.S.A. 21–3523. We adopt our Supreme Court's analysis in Woolverton and apply it here to bolster our conclusion.
Drach urges us to distinguish Woolverton because here the applicable statute does not require a solicitation to be communicated, but only requires that a solicitation be made “by means of communication.” We perceive this purported distinction to be one without a difference; whether a solicitation is required to be “communicated” or to be made “by means of communication” is legally equivalent. The elements are twofold: the invitation for an unlawful sex act must be both made and received.
We reject Drach's challenge to the venue in Sedgwick County for these reasons.
Was There Sufficient Evidence to Support Drach's Conviction?
Drach next challenges the sufficiency of the evidence, arguing that an enticement of the female adult detective to submit to oral sex is not an unlawful sexual act under the statute because sodomy between consenting adults is no crime. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). Interpretation of a statute, however, is a question of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41, 47, 233 P.3d 780 (2010).
Drach argues that his solicitation here was—in reality—for a lawful sexual act with an adult, and that the State has prosecuted him as if the statute had qualified “unlawful sexual acts” as those “committed with a person over 14 years of age but less than 16 years of age.” We reject the argument for two reasons: (1) K.S.A. 21–3523(a)(1) criminalizes conduct based on a perception by the offender as to the age of the recipient; and (2) the statute contains within its definition of “unlawful sexual acts,” criminal sodomy, which is defined in K.S.A. 21–3505(a)(2), and which provides precisely the age qualification urged by Drach. See K.S.A. 21–3501(4); K.S.A. 21–3505(a)(2); K.S.A. 21–3523(a)(1).
The evidence as reflected by stipulation is that Drach used his moniker “cups009” to entice or lure someone clearly identified and perceived by him to be a child of 14 years of age to engage in an unlawful sexual act under K.S.A. 21–3523(a)(1), specifically criminal sodomy under K.S.A. 21–3505(a)(2); see K.S.A. 21–3501(4). Thus, we reject Drach's challenge to the sufficiency of the evidence and affirm his conviction.
Affirmed.