Opinion
No. 108,156.
2013-03-8
STATE of Kansas, Appellee, v. Iris D. SHIELDS, Appellant.
Appeal from Shawnee District Court; Philip L. Sieve, Senior Judge, assigned. John A. Fakhoury, of Fakhoury Law Office, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Philip L. Sieve, Senior Judge, assigned.
John A. Fakhoury, of Fakhoury Law Office, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Iris D. Shields was convicted of sexual battery in a jury trial. After the jury returned the verdict, Shields moved for a judgment of acquittal contending that there was insufficient evidence for the jury to convict. The district court denied the motion, and he appeals. We affirm.
During October 2011, C.J., a 20–year–old unmarried female, worked at Quincy House, a veteran homeless ministry. Prior to the alleged sexual battery, CJ. and Shields had known each other for a couple of weeks and had interacted. C J. was courteous to Shields and had no reason to mistrust him. However, the only physical contact they had was holding hands during a prayer and nonsexual side hugs.
On the date of the alleged sexual battery, C.J. was doing laundry in the laundry room of the Quincy House. The laundry room could only be accessed by going through a bathroom connected to the living room, and both the bathroom door to the living room and the bathroom door to the laundry room were kept open with C J. in the house.
C.J. was initially alone in the laundry room, but Shields came into the room to join her. Once C.J. noticed Shields, she asked if he needed something. He responded, “I'd just rather be standing in here looking at you than out there [in the living room].” C.J. testified that she felt uncomfortable at this point but continued to work on the laundry. As C.J. continued to work, Shields came up behind her and put his arms around her waist, with his front to her back. C.J. said, “[E]xcuse me,” told him to stop, and moved out of his grasp. Shields then attempted to put his arms around C.J. again in the same manner, and she responded in the same manner.
After telling Shields to stop for the second time, C.J. attempted to leave the laundry room. However, Shields grabbed her wrists, told her not to be scared several times, and said, “I just want a kiss.” On cross-examination, C.J. testified that Shields held her wrists for a minute, but she later conceded that it might have been for less time. She testified that Shields did not attempt to grab her breasts or cup her genitalia, but that his hand had slid across her buttocks as she attempted to move out of his grasp. She did not mention whether Shields was sexually aroused to the police, and she did not notice whether Shields was sexually aroused in the laundry room.
After C.J. broke free of Shields' grasp, she left the laundry room. She told a coworker what happened, and the coworker called the police. Topeka Police Officer Alexander Wall responded to the call. He read Shields his Miranda rights, which Shields waived.
Shields told the officer that he was in the laundry room with C.J. and tried to make a pass at her, meaning that he had tried to kiss her. Shields told Officer Wall that he put his hands on both C.J.'s waist and her wrists and said that he had gone in for a kiss and had been rejected. Shields maintained that he had not used force, but Officer Wall placed him into custody for sexual battery. Officer Wall testified that the “grabbing, pulling in close and trying multiple times to kiss even though she's saying no” was sufficient grounds to arrest for sexual battery, even though no kiss actually occurred.
Shields moved for judgment of acquittal after the close of State's evidence, claiming that the State had not proven the elements of sexual battery, but the motion was denied. The jury convicted Shields of sexual battery.
An entry of judgment of acquittal may be made only if the evidence is insufficient to sustain a conviction of the crime charged. K.S.A. 22–3419(1). Therefore, a motion for judgment of acquittal under Kansas criminal procedure is a ruling based on the sufficiency of the evidence to sustain a conviction of the defendant in a particular case. State v. Crozier, 225 Kan. 120, 124, 587 P.2d 331 (1978). When a defendant challenges the sufficiency of the evidence in a criminal case, the appellate court reviews all of the evidence, viewed in the light most favorable to the prosecution, and determines whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005) (quoting State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 [2003] ).
Shields was convicted of violating K.S.A.2012 Supp. 21–5505(a), which states: “Sexual Battery is the touching of a victim who is not the spouse of the offender, who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.” The only issue raised on appeal is whether Shields acted with the intent to arouse or satisfy the sexual desires of himself or another.
Based on the standard of review and applicable statute, Shields must demonstrate that, when viewed in the light most favorable to the prosecution, insufficient evidence existed at trial to demonstrate that he intended to arouse or satisfy his sexual desires. Intent can be shown by acts, circumstances, and reasonable inferences. State v. Salcido–Corral, 262 Kan. 392, 398, 940 P.2d 11 (1997). Shields argues that there is insufficient evidence of his intent to arouse or satisfy his sexual desires because he did not attempt to kiss C.J. or touch C.J. in a sexual manner. Shields cites several cases to demonstrate that a kiss is not always sexual in nature and that sexual contact is much different than what occurred in the Quincy House laundry room.
First, Shields directs our attention to State v. Rutherford, 39 Kan.App.2d 767, 184 P.3d 959,rev. denied 286 Kan. 1184 (2008). In Rutherford, the defendant was charged under K.S.A. 21–3504, which required the same “intent to arouse or to satisfy the sexual desires” standard as the present case. See 39 Kan.App.2d at 774. A panel of this court found that there was sufficient evidence to prove the intent to arouse or satisfy desires based on the fact that the defendant kissed a child “ ‘like you would kiss a girlfriend’ “ despite being asked to stop and made statements that the child had pretty lips and would be a good kisser. 39 Kan.App.2d at 776. Shields claims that his case is sufficiently different because C.J. was an adult, he did not actually kiss C.J., he made no sexual comments, and he did not touch C.J. sexually.
Shields also refers to State v. Stout, 34 Kan.App.2d 83, 84, 114 P.3d 989,rev. denied 280 Kan. 991 (2005), where the Kansas Court of Appeals was asked to determine whether “French kissing” was “lewd fondling or touching” under K.S.A.2004 Supp. 21–3520(a)(8). The court held that, similar to the statute in the present case, specific intent to arouse or satisfy the sexual desires of either the victim or offender or both was required. 34 Kan.App.2d at 86. In deciding this case, the court held that a kiss is a touching, but it is not necessarily innocent, “dependent upon the circumstances.” 34 Kan.App.2d at 88. However, the court also stated that whether the conduct was lewd given the totality of the circumstances was a matter for the jury. 34 Kan.App.2d at 88. Shields argues that because no kiss actually took place in this case and there is no evidence of what type of kiss Shields had in mind, his asking for a kiss is not evidence that he intended to arouse or satisfy his sexual desires.
Finally, Shields references an unpublished opinion to help distinguish his actions. In State v. Newman, No. 95,330, 2007 WL 2301907 (Kan.App.2007) (unpublished opinion), rev. denied 285 Kan. 1176 (2007), another sexual battery case, the victim testified that the defendant told her he loved her and wanted to kiss her, tried to pull her top up, and got his fingers in her pants. The court found that the jury could infer from this evidence that the defendant's intent was to arouse or satisfy his or the victim's sexual desires. 2007 WL 2301907, at *1. Shields argues that the evidence in his case is much less, as he did not touch C.J.'s genitals or profess his love; instead, he only requested a kiss.
Shields contends that these cases demonstrate that his contact with C.J. and his request for a kiss were not sufficient evidence to demonstrate his intent to arouse or satisfy his sexual desires. However, his argument is unpersuasive under the plain language of the statute. Shields did not need to actually kiss C.J. or achieve arousal for sexual battery to occur. Shields needed only to have touched C.J. with the intent to arouse or satisfy his sexual desires. See K.S.A.2012 Supp. 21–5505(a).
Proof of actual arousal is not required for sexual battery. State v. Gilley, 5 Kan.App.2d 321, 324, 615 P.2d 827,rev. denied 228 Kan. 807 (1980). Furthermore, intent to arouse or satisfy one's sexual desires can be shown through circumstantial evidence. 5 Kan.App.2d at 324. Here, the jury concluded that Shields' actions, coupled with the circumstantial evidence that surrounded the event, was sufficient to demonstrate his intent to arouse or satisfy his sexual desires.
On appeal, it is our duty to consider Shields' actions, the attendant circumstances, and what could be reasonably inferred from his behavior, in the light most favorable to the prosecution. See Calvin, 279 Kan. at 198. Because Shields cornered C.J., embraced her despite her protests, and prevented her from leaving the area, a rational factfinder could have found Shields guilty of sexual battery. We conclude the district court did not err in denying Shields' motion for judgment of acquittal because the evidence was sufficient to support his conviction.
Affirmed.