State v. Gallardo

300 P.3d 89, 48 Kan. App. 2d 756
CourtCourt of Appeals of Kansas
DecidedApril 5, 2013
DocketNo. 101,067
StatusPublished

This text of 300 P.3d 89 (State v. Gallardo) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gallardo, 300 P.3d 89, 48 Kan. App. 2d 756 (kanctapp 2013).

Opinion

Hill, J.:

A panel of this court held there were sufficient facts in the record on appeal to support the district court’s conclusion that Ananstacio Deleon Gallardo’s crime was sexually motivated in State v. Gallardo, 43 Kan. App. 2d 346, 224 P.3d 1192 (2010). Gallardo appealed that ruling to our Supreme Court. Ultimately, that court remanded this case to us for reconsideration in light of their recent ruling in State v. Coman, 294 Kan. 84, Syl. ¶ 6, 273 P.3d 701 (2012).

Case history.

On June 19, 2008, Gallardo was convicted of unlawful sexual relations in violation of K.S.A. 21-3520(a)(1). The district court required Gallardo to register as a sex offender after finding the [757]*757crime of conviction fell under K.S.A. 22-4902(c)(14), as it was a “sexually motivated” crime. Gallardo, 43 Kan. App. 2d at 347-48.

Gallardo appealed to this court, arguing the district court erred in requiring him to register as a sex offender. Gallardo claimed the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., was not applicable to the crime of unlawful sexual relations as it pertains to two consenting adults. Gallardo also argued the district court erred in determining his crime fell under the “catch-all provision” of K.S.A. 22-4902(c)(14) because (1) his crime was not sexually violent; (2) there was no evidence his crime was sexually motivated; and (3) where the statute specifically provided that unlawful sexual relations requires registration if one of the parties is less than 18 years old, a finding that he must register under the catch-all provision renders the age requirement superfluous.

Court of Appeals ruling.

This court rejected Gallardo’s claim. In doing so, the court first noted that Gallardo’s crime is not among those specifically listed at K.S.A. 22-4902(c)(1)-(13)—a list of crimes deemed “ ‘sexually violent.’ ” The court then concluded:

“The Kansas Legislature’s specific failure to include unlawful sexual relations under subsections (c)(1) through (c)(13) does not indicate an intent to exclude all other convictions from registration requirements, but only an intent to exclude such convictions from per se inclusion. In fact, the legislature did not intend the listing to be exclusive given tire addition of subsection (c)(14), which serves as a general ‘catch all’ for crimes meeting the criteria set forth therein. If the failure of the legislature to list specific offenses within subsections (c)(1) through (c)(13) were to insulate all other crimes from being considered sexually violent, the general categoiy defined by subsection (c)(14) would be rendered meaningless. Therefore, the only question is whether unlawful sexual relations meets the criteria of subsection (c)(14).” Gallardo, 43 Kan. App. 2d at 350.

The court went on to note that panels of this court have “consistently construed” the applicable statutes to mean that “any act meeting the requirement of the general definitional subsection for sexually motivated crime ([c] [14]) will implicate registration without regard to inclusion or exclusion of die crime of conviction within the specific listing provided by other subsections.” 43 Kan. App. 2d at 351. The court concluded:

[758]*758“If unlawful sexual relations is found beyond a reasonable doubt to have been committed with sexual motivation pursuant to subsection (c)(14), the person so convicted is an ‘offender.’ We are convinced that any reasonable scrutiny of the entire legislative scheme set forth in 22-4902 manifests a strong legislative intent to broadly include within the statutoiy ambit virtually any crime committed with sexual gratification as its motivation.” 43 Kan. App. 2d at 351.

The panel went on to conclude there were sufficient findings to support the district court’s determination that Gallardo’s crime was sexually motivated. 43 Kan. App. 2d at 351-52.

Gallardo sought review by our Supreme Court. The Supreme Court ultimately granted review in Gallardo’s case and remanded it to this court for reconsideration in light of Coman, 294 Kan. 84—a case decided in March 2012. This court must now consider Gallardo’s challenge to his sentence in light of Coman.

Supreme Court’s ruling in Coman.

In Coman, die court considered whether a defendant convicted of misdemeanor criminal sodomy was required to register as a sex offender under the catch-all provision at K.S.A. 22-4902(c)(14). Aldiough Coman’s crime of conviction was not a crime listed in K.S.A. 22-4902(c)(1)-(13), the crime offelony criminal sodomy mas included in this list. 294 Kan. at 85; see K.S.A. 22-4902(c)(4).

The Coman court ultimately held the district court erred in requiring Coman to register as a sex offender under the catch-all provision. 294 Kan. at 97.

In doing so, the court first noted that when the legislature included criminal sodomy in its list of sexually violent crimes at K.S.A. 22-4902(c)(l)-(13), it specifically included the felony version of the crime, but not the misdemeanor. The court concluded there was no “doubt” the legislature intentionally omitted the misdemeanor from the list of sexually violent crimes. See 294 Kan. at 92-93. The court rejected this court’s conclusion that the omission of the misdemeanor merely reflects a belief that not every act of misdemeanor criminal sodomy should be considered sexually violent—but that a particular violation may be considered sexually violent if the facts indicate the act was sexually motivated, as contemplated by the catch-all provision. 294 Kan. at 94. In rejecting [759]*759this analysis, the Supreme Court reasoned it was “counterintuitive” to think the legislature went to the trouble of omitting the misdemeanor crime from the list simply to eliminate the registration requirement for the “rare, if not nonexistent” circumstance in which a person commits the crime without sexual motivation. 294 Kan. at 94. The court stated this court’s interpretation rendered the omission of misdemeanor criminal sodomy from the list “virtually meaningless and useless, because the very act of committing tire omitted crime brings the actor within the broadly cast net” of the catch-all provision. 294 Kan. at 94.

The Supreme Court also pointed out that the legislature specifically included

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Related

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Bluebook (online)
300 P.3d 89, 48 Kan. App. 2d 756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gallardo-kanctapp-2013.