Opinion
No. 110,158.
2015-01-23
STATE of Kansas, Appellee, v. Bradley McCLELLAND, Appellant.
Appeal from Saline District Court; Jared B. Johnson, Judge.Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Jared B. Johnson, Judge.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Bradley McClelland of one count of aggravated indecent liberties with a child. The district court denied McClelland's motion for sentencing departure and imposed a life sentence with a minimum mandatory term of 25 years. On appeal, McClelland argues the district court should have granted his motions for judgment of acquittal because the State failed to prove two elements of the crime beyond a reasonable doubt. McClelland also argues on appeal that his life sentence is unconstitutional and that the district court abused its discretion in denying his motion for durational departure. Finding no error in the district court's decision to deny McClelland's motions for acquittal or the sentence imposed, we affirm.
Facts
During the relevant time period, A.H. was a 9–year–old girl who lived with her brother and father in Salina. She and her family lived across the street from McClelland. On multiple occasions, A.H. and her brother went to McCelland's house while he was doing yard work so that they could pet his dog. Sometimes A.H. and her brother would go inside McClelland's house to play darts or play on his computer.
At some point in October 2011, A.H. went to McClelland's house by herself, which she had done before. On that occasion, she played a computer game while sitting on McClelland's lap. Later, she told two of her friends that McClelland had rubbed her thigh. They told her to tell her father, and she did. A police investigator came to A.H.'s house, and A.H.'s father arranged for her to be interviewed about the incident.
A.H. was interviewed by Rita Begnoche, an employee with the Kansas Department for Children and Families. During the interview, A .H. told Begnoche that on the day in question, she had gone over to McClelland's house to say “ ‘hi.’ “ She told Begnoche that McClelland asked if she wanted to play on his computer. A.H. said that McClelland asked her to sit on his lap and, after she did so, McClelland touched her leg and put his hand up her shorts. A.H. told Begnoche that it was not necessary for her to sit on McClelland's lap in order to reach the computer. A.H. also stated in the interview that McClelland's body did not change in any way while she was sitting on his lap and that he did not touch her vagina.
On November 3, 2011, James Feldman, an investigator with the Salina Police Department, contacted McClelland by phone. Feldman told McClelland that his name came up in an investigation and Feldman wanted to talk to him about it. The two made arrangements to meet the following day. The next day, Feldman and another police investigator picked McClelland up at his house. McClelland rode to the police station in the front seat and was not placed under arrest or restrained at that time.
When they arrived at the Salina Police Department, Feldman and McClelland went to an investigator's office. At this point, Feldman advised McClelland of his Miranda rights. When McClelland started discussing the facts of a theft case he knew about, Feldman realized that McClelland may have been confused about why he was there. Accordingly, Feldman directed the discussion to A.H. and what happened on the day in question. McClelland responded that A.H. came over to his house alone and was playing a computer game while sitting on his lap. When Feldman asked if anything happened, McClelland stated that he got a little “frisky.” Feldman then asked, “How did you get frisky?” McClelland responded that he was rubbing A.H's leg. When Feldman asked why he rubbed her leg, McClelland said that he was having a bad day. McClelland also said he was feeling lonely and wanted some affection. McClelland denied becoming aroused or having an erection during the incident. When asked if he thought he touched A.H.'s vagina, McClelland responded, “Yeah, probably.” But later, he contradicted this statement by saying it was not possible that he touched her vagina. Feldman asked, “Why her?” McClelland responded that it was because she was available. McClelland also acknowledged that the way he touched A.H. was inappropriate.
At the end of the interview, McClelland provided a written statement regarding his interaction with A.H. It read:
“ ‘[A.H.] had come over to my house to play on my computer. We had gone into the den to set up the game. [A.H] climbed onto my lap to work the mouse. I was feeling lonely and took advantage of the situation. I started to feel her, the inside of leg and towards the seam of her panties. I am sorry that I couldn't help myself. I was feeling lonely and took advantage of the situation. I was feeling for some affection.’ “
McClelland was charged with aggravated indecent liberties with a child. A jury trial was held in November 2012. A.H. testified at trial that on the day of the alleged offense, McClelland asked her to sit on his lap, which she did. A.H. said McClelland then started rubbing her leg, which made her uncomfortable. She testified he stopped rubbing her leg when a woman walked by the room who she believed to be McClelland's girlfriend. A.H. said she was wearing shorts on the day in question. Although she initially testified that McClelland's hand never went up her shorts, she testified a short time later that McClelland tried to go up her pants with his hand. She never went back to McClelland's house after that date.
McClelland also testified at trial. He told the jury that on the day of the incident, A.H. came over to his house alone. He asked her if she wanted to play on the computer, and she said she did. McClelland testified that the floor in the room with the computer was slanted and that in the past A.H. had to sit on her knees on top of a chair in order to use the mouse. McClelland sat down to set up the computer game, and A.H. was standing next to him. He testified that he became concerned that she might fall off the chair and hurt herself, so he asked her to sit on his lap. She complied. They were alone in the room, but McClelland's girlfriend was in another room of the house.
McClelland testified that while A.H. was sitting on his lap, he had his legs together. When asked where he put his hands, he said he tried dangling them at his sides, but that was uncomfortable. He also said that he tried to put them behind his head, but that did not last long, so he put his hands on her knees. He testified that A .H. was moving around on his lap when she was playing the game. According to McClelland, A.H. eventually got frustrated with the game she was playing, then jumped off his lap and left.
During his testimony, McClelland denied trying to arouse himself or A.H. by his actions. During direct examination, McClelland acknowledged telling Feldman that he had gotten a little frisky, but he defined “ ‘frisky” ’ as “[c]aring; loving,” and said it was the only word he could think of at the time. But on cross-examination, McClelland admitted that he had not engaged in sexual relations with his companion for many years, and when asked if this was why he had used the word “ ‘frisky,’ “ he answered, “Possibly.” McClelland initially said that the closest he came to touching A.H.'s vagina was the hem of her shorts. When confronted with his previous statement to Feldman, McClelland ultimately admitted that he had reached under her shorts and touched her underwear. He also testified that, at the time A.H. jumped off his lap, he had started to think something was not right and stopped touching A.H.
After the State rested its case, but before McClelland put on any evidence, he moved for a judgment of acquittal, arguing the State provided insufficient evidence to establish the crime charged. The district court denied the motion. After the defense presented its evidence and closing arguments were made, the jury returned a guilty verdict. After trial, McClelland renewed his motion for a judgment of acquittal, which again was denied by the district court.
Prior to sentencing, McClelland filed a motion for a departure sentence and a motion to declare his life sentence unconstitutional. Both were denied.
Analysis
A. Sufficiency of the evidence
McClelland argues the evidence presented at trial was insufficient to convict him of aggravated indecent liberties with a child. In so doing, he attempts to frame the issue in a way that would entitle him to de novo review by this court. More specifically, he claims the issues must be reviewed as an error by the district court in its interpretation and application of the relevant statute and, alternatively, as a due process violation for sustaining his conviction in the absence of proof beyond a reasonable doubt.
But McClelland misstates the applicable standard of review. When an appellate court reviews the denial of a motion for judgment of acquittal, it examines the sufficiency of the evidence to support a conviction. When reviewing the sufficiency of the evidence in a criminal case, the appellate court looks at all the evidence in a light most favorable to the prosecution and determines whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. This court will not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. Raskie, 293 Kan. 906, 919–20, 269 P.3d 1268 (2012). A conviction may be based entirely on circumstantial evidence and the reasonable inferences deducible from that evidence. State v. McCaslin, 291 Kan. 697, 710–11, 245 P.3d 1030 (2011), overruled on other grounds by State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014).
McClelland challenges the sufficiency of the evidence in several ways. First, he claims the district court erroneously denied his motion for judgment of acquittal because the evidence was insufficient to establish McClelland committed a lewd fondling or touching. In a separate challenge to the sufficiency of the evidence, McClelland claims the evidence presented by the State was insufficient to prove that McClelland touched A.H. with the requisite intent to arouse or to satisfy his sexual desires, A.H.'s sexual desires, or both. We address each of these claims in turn.
1. Lewd touch
McClelland argues that for a touch to be lewd under K.S.A.2013 Supp. 21–5506, it must be done with the specific intent to arouse or to satisfy the sexual desires of the child, the offender, or both. As support for his position, he cites the following language from the Kansas Supreme Court:
“In our judgment the words in the statute, ‘lewd fondling or touching’ of the person of either the child or the offender, should be construed to require the state to prove a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or to satisfy the sexual desires of either the child or the offender or both.” (Emphasis added.) State v. Wells, 223 Kan. 94, 98, 573 P.2d 580 (1977), overruled by State v. Ta, 296 Kan. 230, Syl. ¶ 5, 290 P.3d 652 (2012).
But while McClelland's case was pending, the Kansas Supreme Court decided Ta, 296 Kan. 230. In a discussion of the precise language cited by McClelland in his brief, the Supreme Court decided that the court in Wells had “mislabeled its summary as a definition of one element of the crime of indecent liberties with a child—the element of a ‘lewd fondling or touching’—when the court was actually restating both elements of the crime in commonly understood terms.” Ta, 296 Kan. at 240. More specifically, the Supreme Court held that a defendant's mental state should not be used to determine whether a touch is lewd. 296 Kan. at 242. Instead, whether a touching is lewd should be determined by considering whether it is “ ‘sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; indecent, obscene, or salacious.’ “ 296 Kan. at 242–43. In making this determination, a factfinder should consider whether the touching “ ‘tends to undermine the morals of a child [and] is so clearly offensive as to outrage the moral senses of a reasonable person.’ “ State v. Reed, 300 Kan. 494, 501, 332 P.3d 172 (2014).
McClelland's argument that the evidence was insufficient to establish a lewd touching was entirely premised on the idea that the State was required to prove that he intended the touching to be lewd. McClelland presents no other reasons he believes the State failed to sufficiently prove that the touching of A.H. was lewd. He even admits in his brief that the act of touching A.H. under her shorts could appear lewd if one does not consider the intent of the person doing the touch. As a result, his claim of error on this point fails.
2. Intent
In claiming that the State failed to provide sufficient evidence to prove that he touched A.H. with the requisite intent to arouse or to satisfy his sexual desires, A.H.'s sexual desires, or both, McClelland makes two distinct arguments. a. Corpus delicti
Translated literally, the Latin term “corpus delicti” means “the body of a crime.” Using that translation, the corpus delicti of an offense is best described as evidence showing that a crime has been committed, e.g., the corpse of a murder victim or the charred remains of a house that was burned down by an arsonist. Black's Law Dictionary 395 (9th ed.2009). As originally conceived, the corpus delicti rule required that the body of the crime—the essential legal components—be supported with evidence other than that of any confession by a defendant.
As developed in the common law, however, the corpus delicti rule prohibits a conviction obtained solely on the basis of a defendant's extrajudicial confession unless the government provides independent evidence that is sufficient to make a prima facie showing that (1) harm or injury occurred and (2) the harm or injury was caused by criminal means. Opper v. United States, 348 U.S. 84, 89–93, 75 S.Ct. 158, 99 L.Ed. 101 (1954). The underlying purpose of this common-law rule is to provide independent corroboration that a crime was committed in order to ensure that a person is not convicted based solely on his own false confession to a crime that never occurred. State v. McGill, 50 Kan.App.2d 208, 213–15, 328 P.3d 554 (2014).
Notably, corpus delicti corroboration does not require the State to provide independent evidence to support each element of the charged offense beyond a reasonable doubt; again, the purpose of the corpus delicti rule is to provide independent evidence to corroborate the reliability of a defendant's incriminating statement that a crime was actually committed. 50 Kan.App.2d at 214–16, 220–22. Likewise, corpus delicti corroboration does not require the State to provide independent evidence that it was the defendant who was the perpetrator of the criminal act. State v. Bradford, 254 Kan. 133, 139, 864 P.2d 680 (1993) (identification of defendant as perpetrator is not part of corpus delicti). In sum, when the State wants to present evidence of a defendant's confession at trial to prove the defendant committed the crime charged, the corpus delicti corroboration prerequisite requires the government to present evidence—independent from that of the defendant's confession—to show that a crime was committed and injury or harm was sustained as a result of that criminal act. McGill, 50 Kan.App.2d at 213–16, 220–22.
With regard to the amount of independent evidence necessary to satisfy this corroboration requirement, the burden of proof is not onerous:
“ ‘[T]he quantum of independent evidence necessary to corroborate the corpus delicti in a criminal prosecution relying upon the extrajudicial confession of [an] accused need not be great. [Citation omitted.] So long as there is some evidence which renders the corpus delicti more probable than it would be without the evidence, we believe that the essential purposes of the rule have been served.’ [Citations omitted.]” State v. Waddell, 255 Kan. 424, 434, 874 P.2d 651 (1994).
Where, as here, the sufficiency of evidence necessary to establish the corpus delicti is challenged on appeal, we review the entire record in the light most favorable to the prosecution to determine whether there was sufficient independent evidence, apart from the defendant's extrajudicial statements, to show that the crime of aggravated indecent liberties with a child was committed and injury or harm was sustained by A.H. as a result of that criminal act. See McGill, 50 Kan.App.2d at 220–22.
On appeal, McClelland argues his conviction must be reversed because the only evidence presented by the State to establish that he touched A.H. with the requisite intent to arouse or to satisfy his sexual desires came from his own out-of-court statements to the police. But, as explained above, the State was not required to provide independent evidence to demonstrate his intent in touching A .H. was to arouse or to satisfy his sexual desires. Before it was permitted to introduce the out-of-court statements he made to the police, the State only had to provide independent evidence that the crime of aggravated indecent liberties with a child was committed and injury or harm was sustained by A.H. as a result of that criminal act. Without considering McClelland's out-of-court statements, we find the following evidence in the record is sufficient to establish A.H. suffered harm caused by the crime of aggravated indecent liberties committed against her.
A.H. testified that McClelland rubbed her leg and tried to reach up her shorts with his hand. A.H. also said that when McClelland touched her, she felt scared. Begnoche testified that during the initial assessment, A.H. said she understood she was there because she had been touched inappropriately. A.H. also told Begnoche the details of what happened when she was at McClelland's house. A.H. said McClelland put his hand up her shorts, causing her to be uncomfortable enough that she immediately left the residence. A.H. demonstrated the touching to Begnoche with the use of an anatomical doll and her own body. Two of A.H.'s friends testified at trial, reporting that A.H. also told them what had happened at McClelland's house and that they told A.H. to tell her father. A.H.'s father confirmed at trial that A.H. talked to him about the incident. Finally, McClelland's girlfriend, who testified for the defense, confirmed that A.H. had been at the house she shared with McClelland on the day in question, that A.H. and McClelland were alone in the den on that day, and that A.H. abruptly left the residence. b. Beyond a reasonable doubt
Distinct from McClelland's corpus delicti argument alleging insufficient evidence at trial to introduce the inculpatory statements he made to Feldman, McClelland also argues that, when viewing all of the facts presented at trial in a light most favorable to the State, there was insufficient evidence from which a rational factfinder could find beyond a reasonable doubt that he intended to arouse or to satisfy his sexual desires, A.H.'s sexual desires, or both. As opposed to the limited quantum of proof requiring some evidence which renders the corpus delicti more probable than it would be without the evidence, our standard of review for a challenge to the overall sufficiency of the evidence in a criminal case is
“whether, after reviewing all the evidence in a light most favorable to the prosecution, the reviewing court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility.” State v. Lloyd, 299 Kan. 620, Syl. ¶ 3, 325 P.3d 1122 (2014).
McClelland denies he intended to arouse or to satisfy his sexual desires and argues there was no direct evidence presented at trial to prove this essential element of the crime. But actual arousal or satisfaction of the sexual desires of either participant is not necessary to prove the crime. State v. Brown, 295 Kan. 181, 201, 284 P.3d 977 (2012). The State need only prove that McClelland engaged in lewd fondling or touching of A.H. with the intent to sexually gratify himself, A.H., or both. This element of the offense can be established by circumstantial evidence. State v. Stout, 34 Kan.App.2d 83, 88–89, 114 P.3d 989, rev. denied 280 Kan. 991 (2005).
Viewing the evidence in a light most favorable to the State, we are convinced a rational factfinder could have found beyond a reasonable doubt that McClelland intended to arouse or to satisfy his sexual desires. McClelland, a 64–year–old man unrelated to A.H., asked her to get on his lap. When she did, McClelland started rubbing her leg under her shorts and touched the seam of her underwear. McClelland told Feldman that he probably touched A.H.'s vagina and described these touchings as “getting frisky.” When asked why he touched A.H. in the manner that he did, McClelland said he had been feeling lonely and wanted some affection. McClelland admitted his touching was inappropriate but that he just could not help himself. B. Life sentence
McClelland argues that his life sentence without the possibility of parole for 25 years pursuant to Jessica's Law, see K.S.A.2011 Supp. 21–6627(a)(1)(C), violates the prohibition against cruel and unusual punishment found in § 9 of the Kansas Constitution Bill of Rights.
Whether a sentence is cruel or unusual punishment under § 9 is controlled by a three-part test, as outlined in State v. Freeman, 223 Kan. 362, Syl. ¶ 2, 574 P.2d 950 (1978):
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishment imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.”
The first factor is “inherently factual, requiring examination of the facts of the crime and the particular characteristics of the defendant.” State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). With regard to the nature of the offense and the character of the offender, the district court noted, among other facts, that McClelland had touched A.H. while she was sitting on his lap, in his home, and rubbed her leg at least to the edge of her underwear. Substantial competent evidence supports these findings. The district court also found that the crime was inherently violent sexually and that McClelland was solely culpable and responsible for any harm or damage arising from his crime. McClelland does not directly challenge any of the court's findings. Instead, McClelland asserts he did not present a high level of danger to society because he had no criminal history before this offense. McClelland also notes that, at sentencing, he provided the district court with a copy of a doctor's evaluation reflecting that he would benefit from and was an appropriate candidate for sex offender treatment. McClelland's assertions here essentially ask us to reweigh the evidence, which is not our function. See State v. Garza, 295 Kan. 326, 335, 286 P.3d 554 (2012). We find no error in the sentencing court's analysis of the first Freeman factor.
The second Freeman factor directs the district court to compare the sentence for aggravated indecent liberties with a child with the sentence for other crimes in this state. McClelland points to the fact that he would have received a similar sentence if he had been convicted of the more serious crime of rape. See K.S.A.2011 Supp. 21–5503(a)(3), (b)(2). Our Supreme Court previously has rejected the argument that the sex crimes punishable under Jessica's Law must be punished less severely than homicides. See State v. Newcomb, 296 Kan. 1012, 1017–21, 298 P.3d 285 (2013); State v. Seward, 296 Kan. 979, 987–88, 297 P.3d 272 (2013); State v. Woodward, 294 Kan. 717, 723–24, 280 P.3d 203 (2012). The same reasoning applies when comparing the crimes of rape and aggravated indecent liberties with a child. Under our present Supreme Court authority, McClelland's sentence is not disproportionately harsh when compared with the punishments imposed for other offenses in Kansas. We are bound to follow these authorities, having seen no indication our Supreme Court is deviating from them. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
Considering the third Freeman factor, our Supreme Court recently accepted for argument's sake that Kansas has one of the harshest penalties in the nation for the crime of aggravated indecent liberties with a child when the crime is committed by an adult against a child under the age of 14. In Newcomb, the court concluded that this acceptance resulted in the third factor weighing in favor of the defendant. But the court found that “persuasive force on the third prong does not counterbalance the first and second prongs.” 296 Kan. at 1021. Even weighing the third factor in the favor of the defendant, our Supreme Court rejected the defendant's argument that his sentence under Jessica's Law was disproportionate under § 9 of the Kansas Constitution Bill of Rights. 296 Kan. at 1021.
Based on controlling authority and the facts of this case, we conclude that McClelland's sentence is not “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” Freeman, 223 Kan. at 367. Thus, McClelland's sentence does not violate § 9 of the Kansas Constitution Bill of Rights. C. Request for sentencing departure
McClelland argues there were substantial and compelling factors justifying a departure sentence; therefore the district court erred by denying his motion for a downward departure sentence. A district court's decision to deny a departure motion is reviewed on an abuse of discretion standard. State v. Baptist, 294 Kan. 728, 735, 280 P.3d 210 (2012). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). A decision is arbitrary, fanciful, or unreasonable when no reasonable person would have taken the view of the district court. State v. Florentin, 297 Kan. 594, 599, 303 P.3d 263 (2013).
In exercising its discretion regarding whether to depart from a Jessica's Law sentence, “a district court first reviews the mitigating circumstances and then weighs those circumstances against any aggravating circumstances, ultimately determining whether substantial and compelling reasons warrant a departure.” State v. Remmert, 298 Kan. 621, 630, 316 P.3d 154 (2014); see K.S.A.2011 Supp. 21–6627(d). The mitigating factors presented by McClelland included his lack of criminal history, his history as a victim of abuse during his own childhood, his amenability to sex offender treatment, his depression at the time of the incident, his prior military service, his history of steady employment, and his family ties and support in the community.
Under the statute, the district court found that McClelland had no prior criminal history; the crime was not committed while McClelland was under the influence of extreme mental or emotional disturbances; McClelland was not an accomplice in a crime committed by another person and his participation was not relatively minor; McClelland was not acting under the substantial domination of another person; and McClelland's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law were not substantially impaired. After considering the statutory factors and the mitigating factors presented by McClelland, the district court ultimately concluded that McClelland had failed to establish substantial and compelling reasons to warrant a sentencing departure; thus, the court denied McClelland's motion.
In reviewing the district court's decision, this court must affirm the denial of the departure motion if it finds that even one reasonable person would agree with the district court judge. See Florentin, 297 Kan. at 602. Here, given the seriousness of McClelland's crime, a reasonable person could agree that the reasons presented by McClelland to the court simply did not justify departure from his Jessica's Law sentence. Accordingly, we conclude the district court did not abuse its discretion by denying McClelland's motion for departure.
Affirmed.