In re E.R.

• Decision Date: 12 December 2008
• Docket Number: No. 100,197.,100,197.
• Citation: 197 P.3d 870
• Parties: In the Matter of E.R.
• Court: Kansas Court of Appeals

197 P.3d 870

In the Matter of E.R.

No. 100,197.

Court of Appeals of Kansas.

December 12, 2008.

Paul Shipp, of Kansas Legal Services, of Manhattan, for appellant E.R.

Lara Blake Bors, assistant county attorney, John P. Wheeler, Jr., county attorney, and Stephen N. Six, attorney general, for appellee State of Kansas.

Before McANANY, P.J., GREEN and BUSER, JJ.

McANANY, J.

This appeal requires us to examine K.S.A. 21-3522(a)(3), sometimes referred to as the "Romeo and Juliet" law. Here, 12-year-old E.R. was adjudicated a juvenile offender for sexually fondling a 14-year-old girl who was a willing participant. E.R. argued to the district court without success that the charge should be dismissed and he should not be adjudicated a juvenile offender because he is younger than the girl involved in this illicit liaison. This appeal follows the district court adjudicating E.R. to be a juvenile offender on this charge.

E.R. argues that the plain language of K.S.A. 21-3522(a)(3) requires an offender charged under the statute to be older than the victim. This is an issue of law over which we have unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).

K.S.A. 21-3522(a) provides:

"Unlawful voluntary sexual relations is engaging in voluntary: (1) Sexual intercourse; (2) sodomy; or (3) lewd fondling or touching with a child who is 14 years of age but less than 16 years of age and the offender is less than 19 years of age and less than four years of age older than the child and the child and the offender are the only parties involved and are members of the opposite sex." (Emphasis added.)

The intent of the legislature in enacting K.S.A. 21-3522(a) controls. See State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008). In our effort to determine that intent we examine the statutory language the legislature employed, giving ordinary words their ordinary meanings. See State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). When the language of a statute is plain and unambiguous, we do not speculate as to the legislature's intent behind it or read into the statute something that is not readily found in it. We do not look for ambiguity where none is apparent. See Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001). We do not add words that are not found in the statute, nor do we ignore words that have been included. We need only resort to the various tools of statutory construction or to the statute's legislative history if the language of the statute is unclear or ambiguous. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied ___ U.S. ___, 129 S.Ct. 36, 172 L.Ed.2d 239 (2008). In the end, we defer to the legislature on all constitutional statutory enactments and do not substitute our own views for those of the legislature on what the law should or should not be.

As we understand it, the State argues that a 12-year-old offender is less than 4 years older than a 14-year-old victim because a person 4 years older than a 14-year-old is age 18, and the age of a 12-year-old is less than the age of an 18-year-old. We suspect that the average reader will have to read the foregoing sentence more than once to figure out the State's theory. We did. We are confident a mathematician could easily express the State's theory in a simple equation. But people do not talk that way. And legislators do not write laws that way.

All of the State's interesting arguments for why we should apply its tortured construction and all of E.R.'s equally interesting policy considerations, which he claims support a contrary view, are...