State v. Johnson

122 P.3d 397, 34 Kan. App. 2d 612, 2005 Kan. App. LEXIS 1098
CourtCourt of Appeals of Kansas
DecidedNovember 4, 2005
DocketNo. 91,867
StatusPublished
Cited by1 cases

This text of 122 P.3d 397 (State v. Johnson) 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. Johnson, 122 P.3d 397, 34 Kan. App. 2d 612, 2005 Kan. App. LEXIS 1098 (kanctapp 2005).

Opinion

Greene, J.:

Bobby L. Johnson appeals his conviction for aggravated indecent solicitation of a child, alleging that the district court lacked jurisdiction over the offense, that the district court improperly refused to admit impeachment evidence, and that prosecutorial misconduct prejudiced the jury. We affirm.

Factual and Procedural Background

Johnson offered to take two children of his girlfriend to the park so that their mother could rest. After 4-year-old D.M. “peed [her] pants” she returned to Johnson’s truck, where he seated her either next to him or on his lap, pulled his pants down to his shoes, “wiggled” his “private,” and masturbated in D.M.’s presence, “leaking” some of the seminal fluid on D.M.’s clothes. D.M. initially told her mother that Johnson also asked her to “drink the milk,” but she did not confirm this aspect of her story at trial. Upon hearing her story, D.M.’s mother called authorities, and their investigation included taking DNA samples from D.M.’s shorts, which were consistent with Johnson’s DNA obtained from a saliva sample.

The State originally charged Johnson with aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A), but ultimately filed an information with an amended charge of aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(B). At trial the State proposed a lesser included instruction on aggravated indecent solicitation of a child under K.S.A. 21-3511, but never filed [614]*614an amended complaint charging Johnson in the alternative. Johnson’s counsel did not object to the lesser included instruction and, in fact, agreed that it was proper.

The jury acquitted Johnson of aggravated indecent liberties with a child but convicted him of aggravated indecent solicitation of a child. Johnson appeals his conviction.

Did the District Court have Jurisdiction to Convict Johnson of Aggravated Solicitation of a ChildP

Johnson’s principal challenge on appeal is to the district court’s jurisdiction to convict and sentence him because the statutory elements of the lesser included offense were “not. identical to some of the elements of the charged crime,” citing State v. Dickson, 275 Kan 683, 69 P.3d 549 (2003). If a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict the defendant of the crime, regardless of the evidence presented. State v. Horn, 20 Kan. App. 2d 689, Syl. ¶ 1, 892 P.2d 513, rev. denied 257 Kan. 1094 (1995).

The amended principal charge against Johnson was aggravated indecent liberties with a child as defined in K.S.A. 21-3504(a)(3)(B). The material subsections of the statute state:

“(a) Aggravated indecent liberties with a child is:
(3) engaging in any of the following acts with a child who is under 14 years of age:
(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or
(B) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.”

Johnson argues that we should construe K.S.A. 21-3504(a)(3)(B) in a manner similar to the construction of K.S.A. 21-3505(a)(3) embraced by our Supreme Court in Dickson. In Dickson, the court contrasted similar subsections of the criminal sodomy statutes, K.S.A. 21-3505(a)(2) and (a)(3), which state:

“(a) Criminal sodomy is:
[615]*615(2) Sodomy with a child who is 14 or more years of age but less than 16 years of age; or
(3) causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal.”

The court then reviewed the legislative history and concluded that the subsections must be construed so that one ([a] [2]) prohibits the accused’s engaging in sodomy with a child and the other ([a][3]) prohibits the accused from causing a child to engage in sodomy either with another person or with an animal. Because Dickson had himself engaged in the wrongful conduct with children but was charged under K.S.A. 21-3505(a)(3), requiring the involvement of another person, the court reversed his conviction of criminal sodomy. 275 Kan. at 695.

Johnson argues:

“Following the Dickson rationale, a charge under K.S.A. 21-3504(a)(3)(B) even more clearly requires a showing of involvement of a third party. The language of the statute itself requires a showing of ‘soliciting the child to engage in any lewd fondling or touching of the person of another,’ K.S.A. 21-3504(a)(3)(B). (Emphasis added.) And the legislative history behind the predecessor to K.S.A. 21-3504(a)(3)(B) shows that the Dickson Court’s rationale applies in exactly the same way. See Supplemental Note on 1987 H.B. 2010 .(noting that subsection that would eventually be K.S.A. 21-3504[a][3][B] was designed to cover fact scenarios ‘in which the perpetrator encouraged the child to commit illegal acts with a third party.’)”

We agree. K.S.A. 21-3504(a)(3)(B) prohibits soliciting the child to engage in lewd fondling or touching of the person of another. It is unfortunate that the prosecution elected to charge Johnson under K.S.A. 21-3504(a)(3)(B) rather than 3504(a)(3)(A). Here, as in Dickson, the defendant was charged under the wrong statutory subsection, and had he been convicted, it could not have been upheld. See State v. Houck, 240 Kan. 130, 136, 727 P.2d 460 (1986).

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Related

State v. Johnson
156 P.3d 596 (Supreme Court of Kansas, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
122 P.3d 397, 34 Kan. App. 2d 612, 2005 Kan. App. LEXIS 1098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-kanctapp-2005.