Opinion
No. 107,841.
2012-10-19
In the Matter of C.T.
Appeal from Johnson District Court; Kathleen Sloan, Judge. Edward L. Bigus, of Overland Park, for appellant. Steven J. Obermeier, assistant district attorney, Clayton J. Perkins, legal intern, and Stephen M, Howe, district attorney, for appellee.
Appeal from Johnson District Court; Kathleen Sloan, Judge.
Edward L. Bigus, of Overland Park, for appellant. Steven J. Obermeier, assistant district attorney, Clayton J. Perkins, legal intern, and Stephen M, Howe, district attorney, for appellee.
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
C.T. appeals his adjudication as a juvenile offender for one count of battery. C.T. claims: (1) that the complaint was fatally defective; (2) that there was insufficient evidence to support the adjudication; and (3) that this court must reverse the adjudication because the victim had impliedly consented to the battery. Finding no error, we affirm the district court's judgment.
On March 24, 2011, a substitute teacher in a middle school choir class showed a movie to the students during the class period. But instead of watching the movie, a small group of students sat behind some chairs in the middle of the classroom and played “Truth or Dare.” The participants included C.T., L.G., C.W., and alleged victim H.M. Another student, I.D., was sitting nearby. As part of the game, H.M. dared C.T. to kiss L.G., but L.G. said no and C.T. did not kiss her. L.G. then dared C.T. to kiss H.M., and C.T. kissed her on the cheek. H.M. testified that she did not give C.T. permission to kiss her and she felt uncomfortable when he did so.
C.T. then lifted H.M's legs and touched his mouth to her vaginal area, over her jeans. L.G. and H.M. indicated that C.T. did this spontaneously, but I.D. testified that C.W. had dared C.T. to perform the act. L.G. testified that she was “freaking out” when the contact occurred, but that H.M. did not seem bothered by the act and did not try to stop it. L.G. further stated that C.T. did not seem angry, rude, or insolent. I.D. testified that H.M. was laughing during the contact and that, although she told C.T. once to stop, I.D. “didn't think she really meant it.” I.D. described C.T .'s manner as funny, fun, hyper, and happy. I.D. also stated that C.T. did not seem rude, angry, or insolent. Finally, H.M. testified that she did not give C.T. permission to touch her and that when the contact occurred, she panicked and was unable to move or speak. H.M. confirmed that C.T. did not seem rude, angry, or insolent.
On May 12, 2011, C.T. was charged with battery under K.S.A. 21–3412. On November 23, 2011, an amended complaint was filed alleging that C.T. intentionally caused “physical contact with another person, to wit: H.M., done in a rude, insulting or angry manner ... in violation of K.S.A. 21–3412.” A bench trial was held on February 23, 2012, at which the State presented the above evidence through the testimony of L.G., I.D., and H.M. At the close of the State's evidence, C.T. moved for a directed verdict, arguing that there was no evidence that the physical contact was done in a rude, insulting, or angry manner. The district court denied the motion. C.T. presented no evidence on his own behalf. After hearing the evidence, the district court ruled as follows:
“[C.T.] kissed [H.M.] on the cheek. She testified that she did not give—she played the game voluntarily. She did not give permission for [C.T.] to kiss her.
“She felt uncomfortable. The kiss lasted for a second. At that point, then, there was no dare.
“[C.T.] lifted up her legs and put his mouth on her vaginal area. One witness testified that [H.M.] did not appear to be bothered and did not say stop.
“One witness said that he heard her say stop, but she did not appear to be bothered. [L.G.] testified that she was bothered by the act and freaking out, was the word she used.
“The victim testified that she was uncomfortable with the kiss on her cheek and that she panicked when he lifted her legs and put his mouth on her vaginal area-or his face on her vaginal area.
“Whether she couldn't say no or didn't say no, the victim testified, and the Court found that she was believable, when she [ ] that she panicked. She was not required, however, to say stop.
“The Court finds that the action itself, whether committed by an adult or a child, was rude and insulting. The Court believes that the evidence is clear beyond a reasonable doubt that [C.T.] did exactly what he was charged with.
“His actions were rude and insulting. He caused intentional physical contact with [H.M.] on March 24 by putting his face in her vaginal area ... causing panic and shock in the victim and in others.
“The act itself, unfortunately, is more than mere horseplay. This moved beyond mere horseplay.
“It was an act itself that, again, whether done by an adult or child, was rude and insulting. Therefore, the Court finds that the evidence is clear beyond a reasonable doubt and finds [C.T.] guilty as charged and guilty of battery.”
C.T. was sentenced to 3 months' probation. He timely appealed the district court's judgment.
Was the Complaint Fatally Defective?
C.T. argues that the amended complaint was fatally defective, i .e., failed to charge a crime, because it charged him with violating K.S.A. 21–3412, a statute that was repealed effective July 1, 2011, and thus was no longer in existence when the amended complaint was filed in November 2011. C.T. contends that he should have been charged under K.S.A.2011 Supp. 21–5413, the battery statute in effect beginning July 1, 2011. In response, the State argues that the amended complaint properly charged C.T. under the battery statute in effect on the date of the alleged offense.
Whether a charging document confers subject matter jurisdiction is a question of law over which an appellate court has unlimited review. The test used to evaluate the sufficiency of the charging document depends upon when the issue was first raised. State v. Gonzales, 289 Kan. 351, 366, 368, 212 P.3d 215 (2009). When a charging document is challenged for the first time on direct appeal, as in this case, the defendant must show that the alleged defect either: (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial. 289 Kan. at 368. A charging document challenged for the first time on appeal is construed liberally in favor of validity and the document is reviewed as a whole. The charging document will be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted. State v. Hall, 246 Kan. 728, 764, 793 P.2d 737 (1990), overruled on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
As the State points out, in City of Kansas City v. Griffin, 233 Kan. 685, 664 P.2d 865 (1983), our Supreme Court discussed the legal principles generally applicable when a criminal statute is repealed and reenacted in modified form by a legislative body. In Griffin, the defendant was charged with driving under the influence of alcohol (DUI), committed on May 28, 1982. The defendant was prosecuted under the DUI ordinance in effect on the date of the alleged crime, and on August 2, 1982, he was convicted in municipal court. Meanwhile, the City of Kansas City enacted a new DUI ordinance effective July 1, 1982. The new ordinance repealed the old ordinance but did not contain a savings clause to specifically authorize continuing pending prosecutions under the old ordinance. The defendant appealed his municipal conviction to the district court, arguing that the complaint should be dismissed because the adoption of the new ordinance, without a savings clause, required abatement of all pending prosecutions under the old ordinance. The district court agreed and dismissed the complaint.
On appeal, our Supreme Court acknowledged that at common law, the outright repeal of a criminal statute generally terminates or bars prosecution for a violation of that statute occurring before its repeal. 233 Kan. at 686. But the Supreme Court noted that rule does not apply where a statute contains a specific savings clause that reserves prosecution under a former statute, or where the statutory scheme contains a general savings clause, e.g.,K.S.A. 77–201First, that preserves all rights and remedies under a repealed statute when the repealing statute is silent as to the effect of the repeal. 233 Kan. at 687. The Supreme Court further determined that even in the absence of a specific or general savings clause, the common-law rule does not apply in certain situations, such as when there is an outright repeal but substantial reenactment of a criminal statute. 233 Kan. at 687–89. The Supreme Court determined that, although there was no specific or general savings clause, the new DUI ordinance was substantially the same as the old DUI ordinance and thus the City of Kansas City could continue its prosecution of the defendant under the old DUI ordinance. 233 Kan. at 689.
Here, K.S.A. 21–3412 was repealed and K.S.A.2011 Supp. 21–5413 was enacted by the same legislative action, which was a comprehensive recodification of the Kansas criminal code. The legislation also contains a specific savings clause reserving prosecutions under the repealed criminal statutes. L.2010, ch. 136, secs. 3, 48, 307. The savings clause states: “This code has no application to crimes committed prior to July 1, 2011.... Prosecutions for prior crimes shall be governed, prosecuted and punished under the laws existing at the time such crimes were committed.” K.S.A.2011 Supp. 21–5103(d). Under this specific savings clause, the State correctly charged and prosecuted C.T. under K.S.A. 21–3412 where the alleged offense occurred while that statute was in effect, notwithstanding that it was repealed before the filing of the amended complaint. C.T. makes no other argument that the amended complaint was so defective as to prejudice the preparation of his defense, impair his ability to plead the adjudication in a subsequent prosecution, or limit his right to a fair trial. Accordingly, we conclude that the amended complaint was not fatally defective.
Sufficiency of the Evidence
Next, C.T. claims there was insufficient evidence to support the adjudication. Specifically, C.T. argues that there was insufficient evidence of each alternative means of committing battery. He also argues that no rational factfinder could have found him guilty of battery because his demeanor was not rude, insulting, or angry when he committed the act. In response, the State contends that alternative means analysis does not apply in the context of bench trials, that in any case the district court clearly indicated the means under which it found C.T. guilty of battery, and that sufficient evidence supported the battery adjudication.
An appellate court has compatible standards when reviewing a district court's denial of a defendant's motion for a directed verdict and when reviewing the sufficiency of the evidence supporting the conviction or adjudication. The question is whether, after reviewing all the evidence in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Finch, 291 Kan. 665, 670, 244 P.3d 673 (2011); State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). To the extent that resolution of this issue requires this court to interpret the language of K.S.A. 21–3412, our review is unlimited. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
As the State correctly notes, alternative means jurisprudence developed as a method of ensuring a criminal defendant's statutory right to a unanimous jury verdict. See State v. Wright, 290 Kan. 194, 205, 224 P.3d 1159 (2010) (quoting Beier, Lurching Toward the Light: Alternative Means and Multiple Acts in Kansas, 44 Washburn L.J. 275, 299 [2005] ). The same jury unanimity concerns do not apply when evidence is presented to a single factfinder, as in a bench trial. See City of Pittsburg v. Witty, No. 101,251, 2009 WL 2436695 (Kan.App.2009) (unpublished opinion) (finding alternative means analysis inapplicable when case is tried to a single factfinder). Thus, C.T.'s alternative means argument is without merit.
C.T. also contends that since L.G., I.D., and H.M. all testified that C.T. did not seem rude, angry, or insolent, no rational factfinder could have found that C.T. had caused the physical contact in a rude, insulting, or angry manner. In other words, C.T. argues that the statutory language requires that the perpetrator's demeanor convey anger or rudeness. The State responds that the district court correctly found that C.T. had acted in a rude and insulting manner, regardless of his demeanor.
K.S.A. 21–3412 states in relevant part: “(a) Battery is: ... (2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.” There is nothing in the plain language of the statute to suggest that “rude, insulting or angry manner” is determined based solely on the defendant's demeanor as subjectively perceived by the victim and/or witnesses. Here, when viewed objectively, it is clear that the physical contact made by C.T., i.e., lifting H.M.'s legs and touching his mouth to her clothed vaginal area, would offend the ordinary person, and it was certainly unwarranted by the social usages prevalent in a middle school classroom setting. Even if the statute requires that the perpetrator's demeanor be rude, insulting, or angry, there is sufficient evidence in the record to support that finding. H.M. testified that she was panicked and unable move or speak when the contact occurred, and L.G. testified that she was “freaking out.” This evidence alone is a sufficient basis to uphold the district court's finding that C.T. caused physical contact with H.M. in a rude, insulting, or angry manner.
Although this incident may well have been handled appropriately at the school level, the prosecutor's office exercised its discretion by filing a battery complaint against C.T. in juvenile court. Our standard of review limits us to considering whether C.T.'s adjudication of battery was supported by sufficient evidence. Considering the evidence in the light most favorable to the State, we conclude there was sufficient evidence to support C.T.'s adjudication of battery in violation of K.S.A. 21–3412(a)(2).
Implied Consent
Finally, C.T. contends that this court must reverse his battery adjudication because H.M. impliedly consented to the physical contact when she voluntarily participated in the “Truth or Dare” game. In response, the State argues that the doctrine of implied consent as a defense to battery generally applies to contact sports, not “Truth or Dare,” and furthermore that the physical contact made by C.T. was not a reasonably foreseeable hazard of participation in that game.
Resolution of this issue involves interpretation of whether consent is an element under the battery statute, K.S.A. 21–3412. Interpretation of a statute is a question of law presenting unlimited review. Arnett, 290 Kan. at 47.
Generally, consent is a defense to battery, as long as the alleged victim was legally capable of consenting to the particular act, the consent was not obtained by duress or fraud, and the touching did not exceed the scope of the consent. 6 Am.Jur.2d, Assault and Battery § 7. Courts have recognized that in the context of an athletic competition, players must consent to physical contact and other players must be able to rely on that consent when playing the game. See State v. Shelley, 85 Wash.App. 24, 28–33, 929 P.2d 489,rev. denied133 Wash.2d 1010 (1997). But C.T. cites no authority for the proposition that the game of “Truth or Dare” is the type of concerted activity in which participation could be considered implied consent to physical contact. Here, there was absolutely no evidence that H.M. dared C.T. to touch his mouth to her vaginal area. Even assuming that participation in the game implied consent to physical contact, C.T.'s physical contact with H.M. in question here was not a reasonably foreseeable hazard of participation, especially given that the game took place in a middle school classroom setting. Thus, C.T.'s contention that H.M. gave her implied consent to the physical contact fails.
Affirmed.