State v. Clark, 105,613.

• Citation: 298 Kan. 843,317 P.3d 776
• Decision Date: 07 February 2014
• Docket Number: No. 105,613.,105,613.
• Parties: STATE of Kansas, Appellee, v. Robert D. CLARK, Jr., Appellant.
• Court: United States State Supreme Court of Kansas

298 Kan. 843

317 P.3d 776

STATE of Kansas, Appellee,

v.Robert D. CLARK, Jr., Appellant.

No. 105,613.

Supreme Court of Kansas.

Feb. 7, 2014.

Syllabus by the Court

1. A rational factfinder could find a defendant guilty beyond a reasonable doubt of two counts of aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(3)(A) if there is uncontroverted evidence the defendant lewdly touched two children under the age of 14, even though there was no evidence that the sexual desire of either the defendant or the child was actually aroused, if there was circumstantial evidence from which a rational factfinder could find beyond a reasonable doubt that the defendant acted with the intent to arouse the sexual desires of the defendant, the child, or both.

2. An inmate who has received an off-grid indeterminate life sentence can leave prison only if the Kansas Prisoner Review Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of lifetime postrelease supervision in conjunction with an off-grid indeterminate life sentence, and the portion of a sentence imposing lifetime postrelease supervision must be vacated.

3. A sentencing court errs in imposing lifetime electronic monitoring. Although lifetime electronic monitoring is mandated as a condition of parole under K.S.A.2013 Supp. 22–3717(u), the sentencing court does not have the authority to impose parole conditions.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorneygeneral, were with her on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

A jury convicted Robert D. Clark of two counts of aggravated indecent liberties with a child under 14 years of age in violation of K.S.A. 21–3504(a)(3)(A). In considering Clark's direct appeal, we reject Clark's sole attack on his convictions and hold the evidence was sufficient to support the jury's verdict that he engaged in the lewd fondling or touching of two children with the specific intent to arouse or satisfy his sexual desires, the desires of the children, or both. Although we affirm Clark's convictions, we find merit in two issues relating to Clark's sentences and vacate those portions of his sentences that imposed lifetime postrelease supervision and lifetime electronic monitoring.

Facts and Procedural Background

Clark's convictions arose from his touching of A.L. and C.L., who were his son's daughters.

Clark's relationship with his son was “[s]trained at best” during his son's childhood. The two lost touch in the late 1980's and approximately 15 years passed before they reconnected. During the time they were estranged, Clark's son married and moved to Topeka. Clark contacted his son in the early 2000's, but their contact consisted of only telephone conversations until Clark also moved to Topeka in early 2008. Once Clark moved to Topeka, he would visit his son's residence at least once a week and would have “[j]ust regular family interaction” with his son and his son's family, which included five children.

On June 9, 2009, after Clark left his son's residence, 12–year–old A.L. asked to privately speak with her mother. A.L. told her mother that “Grandpa [Clark] has been touching me.” A.L. explained that Clark had been touching her breasts “every opportunity he seemed to have.” Later that night, A.L. told her father that “for at least six months, ... since before Christmas of 2008, that just about every time [Clark] would sit next to her on the couch or wherever they were, he would reach his arm over her shoulder and touch her breasts.” A.L. told her father she would occasionally move Clark's hand and tell him to stop. Clark would temporarily stop, but within a few minutes he would begin to rub her breasts again. A.L. decided to tell her parents because she had become “extremely uncomfortable” during a visit to Clark's apartment earlier in the day. She told her parents she had bent over while cleaning Clark's oven and he had said, “It's okay. No one is looking at your butt except me.” The comment made her feel like “he didn't care about [her],” and she decided it was time to tell her parents what was happening.

A.L.'s parents concluded Clark needed help but decided to handle the situation within the family and try to get Clark counseling instead of involving law enforcement. The next day, Clark's son confronted Clark, telling Clark he could not see his grandchildren again until he received counseling. In response, Clark's “shoulders slumped over and he lowered his head,” and he apologized for being inappropriate. He said, “When I found myself being inappropriate with them,” “I would tell myself to stop because I know this isn't right.” He also explained, “I would find my hand there and I would just—sometime I would take it away and say no, this isn't right; I can't do this; this is inappropriate.” He also admitted, “I always thought I would get in trouble for something like this.”

Because Clark referred to “them,” his son suspected that Clark had also touched his 10–year–old daughter C.L., and so, along with his wife, he asked C.L. if she had been touched by her grandfather. C.L. told her parents Clark would rub her breast almost every time they sat on the couch together.

Other family members soon learned of A.L.'s and C.L.'s accusations, leading the girls' grandmother and their aunt to file a report with the Topeka Police Department. The following day, the girls' father also went to the Topeka Police Department to file a report.

A detective spoke separately with A.L. and C.L. at Prairie Advocacy Center. Using anatomically correct dolls, A.L. placed the male doll's hand over the female doll's shoulders and then rubbed and fondled the female doll's breast. C.L. also used the dolls to demonstrate that her grandfather put his arm over her shoulder and rubbed her breast with an open hand.

In the investigation that followed, Clark agreed to speak with a detective. Clark offered that he knew he was being accused of indecent liberties with a child under the age of 14. Clark explained that he had gone to the public library to look at the statute books to research what charges he might face. Clark was adamant, as he continued to be throughout the investigation and prosecution, that he was not going to say anything against his grandchildren and that he did not want to call his grandchildren liars.

When asked specifically about the events of June 9, 2009, Clark explained that he had been at his son's house early in the day. He then left to run errands, and A.L. and C.L. asked if they could come along. When they finished running the errands, the girls went with Clark to his apartment. A.L. cleaned Clark's oven because she had burnt a few things while learning how to cook. When Clark mentioned this, the detective asked Clark if he had said anything about A.L.'s buttocks or made any comment that would have made her uncomfortable. Clark indicated he “honestly [didn't] remember saying anything like that.”

But Clark did confess to inappropriately touching A.L. and C.L. He stated that he “found [himself] sitting on the couch with the girls” and his “arm would go around them” and his hand “[might] be in an inappropriate place” without him realizing what he was doing. He stated, “I tried to stop when I found myself doing it, [and] move[d] my hand because I don't want it to happen.” He indicated that his hand would be touching the girls' “upper breast area.” He also admitted that his hand would be moving around in a motion that could be described as rubbing the girls' breasts. According to Clark, the touching happened often, probably more than 10 times. He also stated that on one occasion A.L. told him to stop touching her. Clark denied ever touching A.L.'s or C.L.'s buttocks but also indicated any touching of the girls' buttocks was unintentional when he was hugging them goodbye.

Clark claimed the touching of the girls' breasts was unintentional and unconscious, until “all a sudden it's like—you're not supposed to be doing this.” He did admit that putting his arm around the girls' shoulders was a conscious movement but claimed “my hands move when I talk.” He denied ever touching the girls under their clothes or touching their genital areas. Further, he denied touching them for sexual arousal and indicated he never thought about the touching later, stated: “I don't get sexually aroused by younger females.” When asked why he repeatedly touched his granddaughters, his response was, “[p]robably ... proximity, they are there.” He also stated, “[I]t's where they are at and the fact that I have problems keeping my hands still.” At one point, Clark indicated he could not explain why he touched the girls, prompting the detective to ask, “If you can't give me any other explanation other than for sexual reasons, what conclusion am I to draw?” Clark responded, “I don't know.”

Clark was charged with two counts of aggravated indecent liberties with a child under 14 years of age in violation of K.S.A. 21–3504(a)(3)(A).

At trial on those charges, A.L. testified Clark frequently rubbed her breast. She told the jury, “[W]e would be normally at my house and we would be sitting on the couch and he'd put his arm around my shoulder and rub my breast.” Clark would whisper and ask her if it was okay. “Almost every time I would tell him to stop,” but he would either “move his hand away and then put it back a few minutes later” or just leave his hand on her breast. A.L. indicated that the touching began before Christmas 2008 and continued almost every time Clark came over to her house, which was once or twice a week. She also testified he had touched her two or three times at the movie theater and a few times at Clark's apartment. A.L. also stated that on a few occasions,...