State v. Croft, No. 105,597.

CourtCourt of Appeals of Kansas
Writing for the CourtLEBEN
Citation290 P.3d 685
Decision Date14 December 2012
Docket NumberNo. 105,597.
PartiesSTATE of Kansas, Appellee, v. Jeffrey Allen CROFT, Appellant.

290 P.3d 685

STATE of Kansas, Appellee,
v.
Jeffrey Allen CROFT, Appellant.

No. 105,597.

Court of Appeals of Kansas.

Dec. 14, 2012.


Appeal from Johnson District Court; John P. Bennett, Judge.
Scott C. Gyllenborg, of Gyllenborg & Dunn, P.A., of Olathe, for appellant.

Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.


Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.

MEMORANDUM OPINION

LEBEN, J.

Jeffrey Croft was convicted of electronic solicitation of a child after he engaged in a computer chat with someone he thought was a 15–year–old girl, discussed sexual acts that he would like to do with her, and arranged to meet her to do those acts. On appeal, he raises issues based on the lack of a definition in the electronic-solicitation statute of the words “entice” and “solicit.” None of the claims has merit:

• He claims that the statute is unconstitutionally vague and overbroad based on its lack of definitions. But you can't challenge a vague statute if its terms clearly apply to you, and no reasonable person would fail to understand that Croft's actions were forbidden by this statute. As to overbreadth, or the applicability of the statute to other conduct it is not meant to prohibit, Croft hasn't shown that the statute covers within its terms some conduct that would be protected free speech.

• He claims that the jury instructions were in error because the district court didn't define the terms, but courts need not define terms the ordinary person would understand. In context, the terms were easily understood in Croft's case.

• He claims that the evidence didn't show he enticed anyone since the 15–year–old girl turned out to be an adult sheriff's detective. But a statute forbidding solicitation is violated even if the person solicited takes no action, and this statute prohibited such communication with a person the defendant believes is a child.

That was the case here under the jury's conclusions about the facts. Croft makes no successful claim on appeal, so we must affirm his conviction for electronic solicitation.

Croft also appeals his sentence, but we have no jurisdiction to consider that issue.

Factual Background

We begin with the sort of notice you might find at the beginning of a television program intended for adult audiences: this opinion contains some explicit language, more than we would have preferred to include. But ultimately we must answer questions about whether Croft reasonably understood that he was soliciting or enticing a girl to engage in unlawful sexual acts, which requires that we review the specific words Croft used. We also must determine whether the evidence—basically the words Croft used—sufficiently proved the crime charged. This too requires that we look at the evidence in some detail.

The events that led to Jeffrey Croft's arrest began in December 2006 in an Internet chat room designated by Yahoo as a place for adult romantic chatting. While in that chat room, using a service called Yahoo Messenger, Croft contacted someone with the screen name olathegirl2000 while he was using the screen name jeffinlawrence. The person with the screen name olathegirI2000 identified herself as Mia Cooper and had an online profile that indicated that she was 14. Mia was actually Timothy Shavers, a detective for the Johnson County Sheriff's Office. Since Croft thought he was chatting with Mia—and Croft's beliefs are central to the charge against him—we'll refer to the chat exchanges as having taken place between Croft and Mia.

The two had brief conversations though Yahoo Messenger sporadically in 2007 and 2008. In 2007, Mia told Croft that she was 14, and he told her he was 30.

Croft contacted Mia again through Yahoo Messenger in May 2008. Mia told Croft that she was 15, and he responded that he was 31. Croft told Mia, “[I]'m fine with you being 15.”

Immediately after that comment, Croft moved the conversation to talk of meeting and sexual activity. Detective Shavers testified about the online conversation:

“A. His reply is, ‘i'm fine with you being 15,’ and a smiley face. Then says, ‘when and where should we meet up?’ I said, ‘I don't know what u wanna do with me.’ He says, ‘hehe. you want me to answer that honestly?’ I say, ‘yes. all i want is honesty.’ He says, ‘lol. what if the answer is naughty?’ I say, ‘i just want honesty.’

....

“A.... [Croft responded,] ‘hehe. well, honestly, i would really like to play with you—make out, maybe eat your pussy (i LOVE eating pussy!), but only if you wanted to do those things, i would never try to force you.’ I say, ‘thanks.’ And, ‘r u serious? i've never had that done b4’ is my next line here. And he says, ‘yeah, i'm totally serious. I LOVE doing it, and i bet you would love getting it.’ Love here all caps like in an e-mail.”

The conversation then returned to meeting up. In response to Croft's questions, Mia explained that she lived with her mother, who worked during the day. Croft suggested getting together at lunch time, and Mia agreed. He then brought the conversation back to sexual activities, again as described in Detective Shavers' testimony:


“A.... He says, ‘after that, I'll come over, hang out a bit, play around. If you're in the mood to have your clit licked, i'll go down on you and give you a couple orgasms.’ And [emoticon] smiley face.

....

“A. I said one of these while we were talking about sexual experience, ‘i don't have a lot of experience.’.... Jeff C. says, ‘that's okay, i don't mind teaching you some things.’ And then a winking smiley face, ‘lol well, what would you want to try and [I'll] tell you if [I'm] kewl with it,’ is my response. He replies, ‘well i would start out by just making out with you.’ And I say, ‘ok kewl.’ ‘then i would probably want to play with your tits, maybe suck on them a little.’ Winking smiley face. I say, ‘ok .’ And then he says, ‘maybe touch your pussy, play with your clit some.’ Again with the smiley face. I say, ‘ok kewl.’ .... ‘then i would really like to lick you!’ is his response. I say, ‘thank you.’ And he replies, ‘you would be cool with all that?’.... I say, ‘yeah, thanks.’ He replies, ‘yw.’ You're welcome. I say, ‘kewl.’ He says, ‘if you want to, you could also play with my cock.’ ‘what would you want me 2 do?’ is my question. Then he says, ‘well, you could play with it, maybe suck it if you like doing that.’ My question is, ‘would u want me 2?’ He replies, ‘yes, but only if you were kewl with it!’

After a bit more conversation about whether Mia has any past sexual experience, Croft told Mia, “[W]e're going to have FUN tomorrow. [Y]ou're going to feel so good!” Shortly after that, they ended the chat.


The next morning, Croft initiated another chat with Mia to finalize arrangements for the meeting. After Mia gave Croft her address, Croft initiated a final discussion of what they would do when they met:

“A. He says, ‘okay, what do you want to do when i get there?’ My reply is, ‘what u wanna do when u get here u can b honest with me .’ He says, ‘hehe, I don't know, we'll figure it out when i get there.’ I say, ‘i mean [I'm] kewl with what we talked about, it's kewl.’ He says ‘great!’.... I ask, ‘is that what u wanna do?’ He says, ‘yes.’ I say, ‘ok.’ ‘is that what you want to do?’ I say, ‘yea, if you wanna.’ I ask if he wanted to. He says, ‘yes.’ I said, ‘ok, kewl.’ “

The address Mia had given Croft turned out to be an Olathe apartment used by the sheriff's office, and Croft was arrested when he came to the apartment.

Croft was charged with electronic solicitation. Before trial, Croft moved to dismiss the complaint and invalidate the electronic-solicitation statute as unconstitutional, a motion the district court ultimately denied. In September 2010, a jury found Croft guilty of electronic solicitation.

Croft testified at trial that because he was communicating with people he had met in an adult chat room, he thought that Mia was an adult who was engaging in role-playing. He said that, until he was arrested, he never considered the possibility that Mia might be a 15–year–old. As a factual matter, however, the jury was told that it could convict Croft only if the jury concluded beyond a reasonable doubt that he had believed the person he had communicated with was less than 16 years old. Since the jury convicted Croft, it must not have believed his testimony that he thought Mia was a role-playing adult.

On January 21, 2011, the district court granted Croft's motion for a downward-durational-departure sentence and sentenced Croft to 39 months in prison. Croft has appealed to this court.

Analysis
I. Croft Has Not Presented a Valid Challenge to the Constitutionality of the Electronic–Solicitation Statute.

Croft first argues that the electronic-solicitation statute is unconstitutional because it is vague and overbroad. Specifically, Croft argues that the statute is vague because if fails to define “entice” and “solicit” and because the mental state required for a violation to occur is unclear. Croft also argues that the statute is overbroad because it has a chilling effect on free speech. The State defends the statute's constitutionality and also suggests that Croft doesn't have standing to make either the overbreadth or vagueness challenge.

We agree that Croft lacks standing to challenge the statute's constitutionality on vagueness grounds: a person whose conduct is clearly covered by a statute's terms has no standing to attack the statute for vagueness when applied to other circumstances. We have unlimited review on standing questions, so we must decide the standing issue independently, without any required deference to the district court. State v. Gilbert, 292 Kan. 428, 431–32, 254 P.3d 1271 (2011).

With regard to overbreadth, however, free-speech issues are at stake, so Croft is allowed to challenge the statute's constitutionality by raising questions about how the statute might be applied to others....

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