State v. Letterman
| Decision Date | 28 May 2021 |
| Docket Number | No. 122,118,122,118 |
| Citation | 492 P.3d 1196 |
| Court | Kansas Court of Appeals |
| Parties | STATE of Kansas, Appellee, v. Tristan T. LETTERMAN, Appellant. |
Meryl Carver-Allmond, of Capital Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Atcheson, P.J., Gardner and Warner, JJ.
A jury convicted Tristan Letterman of lewd and lascivious behavior after a woman and her children observed him masturbating in the alley outside her backyard's chain-link fence. At sentencing, the district court imposed 60 months' postrelease supervision, instead of the standard 12-month term, based on its determination that Letterman committed a sexually motivated offense—that is, he exposed himself for his own sexual gratification. Letterman now appeals, challenging the sufficiency of the evidence and the constitutionality of his extended 60-month postrelease-supervision term. After carefully considering the record and the parties' legal arguments, we affirm Letterman's conviction and sentence.
The events giving rise to Letterman's conviction took place behind the house where D.H. and her family lived. The house's driveway ran from the street and through the side yard before wrapping around the back of the house, where the garage was located. A privacy fence ran along the side yard, while a chain-link fence separated the backyard from a nearby alley. A tree grew in the alley near where the two fences met.
On an August afternoon in 2018, D.H. pulled into the driveway with her three children, who were between the ages of five and seven years old. As she did so, she saw a man sitting against the tree outside the chain-link fence, facing her house; his pants were halfway down, and he was masturbating with one hand and holding a syringe in the other. D.H. took her kids inside the house and called 911.
As they awaited a police response, several adult members of D.H.'s family told the man to leave. He left after 15 minutes but returned about an hour later, walking down the sidewalk in front of the house. D.H. again called 911 and began following the man; she eventually flagged down Wichita police officers on bicycle patrol, explained what happened, and described the man and the direction he was walking.
Police arrested Letterman, who matched D.H.'s description, a few blocks away from her house. Officers searched Letterman and found various drug-related items, including syringes, pipes, and a small plastic bag. They also found a pair of girl's underwear and a stuffed animal, both of which belonged to D.H.'s daughter. Officers discovered trash and a blanket under the tree behind D.H.'s house.
Based on this evidence, a jury found Letterman guilty of lewd and lascivious behavior, a felony because it occurred in the presence of D.H.'s young children. The district court imposed a nine-month prison sentence for the offense. The court also found that Letterman's conviction was sexually motivated—that is, it was done for his own sexual gratification—and thus imposed 60 months of postrelease supervision instead of the presumptive 12-month supervision term.
On appeal, Letterman challenges aspects of his conviction and his sentence. He argues that the evidence was not sufficient to support his conviction for lewd and lascivious behavior, as that offense requires a showing that Letterman publicly exposed himself—a phrase Letterman interprets to require exposure in a public place. And he asserts that the district court improperly engaged in judicial fact-finding when it imposed the extended postrelease-supervision term. We first address the evidence supporting Letterman's conviction and then turn to the sentencing question.
When a defendant challenges the sufficiency of the evidence to support his or her conviction, an appellate court reviews the evidence "in a light most favorable to the State" to ascertain whether a rational fact-finder "could have found the defendant guilty beyond a reasonable doubt." State v. Rosa , 304 Kan. 429, Syl. ¶ 1, 371 P.3d 915 (2016). Practically speaking, this standard requires appellate courts to affirm a conviction on sufficiency grounds as long as there is some evidence in the record to support each element of the offense. See State v. Dobbs , 297 Kan. 1225, 1238, 308 P.3d 1258 (2013). Because we were not present at trial to observe witnesses' demeanor or hear their testimony, we cannot reweigh the evidence, resolve evidentiary conflicts, or reassess witness credibility. State v. Keel , 302 Kan. 560, 566, 357 P.3d 251 (2015).
The evidence regarding Letterman's conduct was largely undisputed—D.H. and her children saw him masturbating in the alley on the other side of the chain-link fence behind their house. Letterman does not quibble with D.H.'s account of these events. Instead, he frames his sufficiency challenge as an issue of statutory interpretation, arguing that the evidence presented at trial did not show that he "publicly exposed" himself within the meaning of Kansas law.
Letterman was convicted for a violation of K.S.A. 2020 Supp. 21-5513(a)(2), which prohibits "publicly exposing a sex organ or exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another." This section includes two types of lewd and lascivious behavior: behavior involving public exposure and behavior involving exposure to a nonspouse without that person's consent. Consistent with the charges filed by the State, the district court here instructed the jury only as to the public-exposure behavior—that the State was required to prove that Letterman "publicly exposed his sex organ with the intent to arouse or gratify the sexual desires of the defendant or another."
Letterman points out that K.S.A. 2020 Supp. 21-5513(a)(2) does not define the term "publicly." And he argues that the phrase publicly exposing could involve multiple types of conduct, such as when the exposure occurs in a public location or when the circumstances give rise to "foreseeability that one's acts may be seen by another." See State v. Albin , No. 114,712, 2016 WL 6651871, at *4 (Kan. App. 2016) (unpublished opinion). Given the various behaviors that could be considered "public," Letterman argues that the statute is ambiguous and that such ambiguity must be resolved in his favor. See State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 417 (2016) ().
When appellate courts interpret statutes, our primary aim is to give effect to the legislature's intent, as articulated through the language the legislature has chosen. Keel , 302 Kan. 560, Syl. ¶ 5, 357 P.3d 251. Our analysis therefore begins with the statutory language, giving common words their ordinary meanings. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016). " ‘When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it.’ " 304 Kan. at 409, 372 P.3d 1135. Instead, we apply the plain language as it is written. Only when the text's meaning is unclear do we consider other interpretive tools, such as legislative history or canons of statutory construction (such as the rule of lenity Letterman references). See 304 Kan. at 409, 372 P.3d 1135 ; see also State v. Williams , 303 Kan. 750, 760, 368 P.3d 1065 (2016) ().
It is true, as Letterman indicates, that K.S.A. 2020 Supp. 21-5513(a)(2) does not explicitly define what it means to "publicly" expose a person's sex organ. But the absence of a definition does not necessarily render the statute ambiguous. Indeed, the vast majority of words and phrases used in statutes are not accompanied by statutory definitions, and definitions are often unnecessary when words are given their common and ordinary meanings. We are thus left to consider whether the statute is unclear when it criminalizes the act of "publicly exposing" oneself. It is not.
As a starting point, "public" is commonly understood to mean "exposed to general view" or "open." Merriam-Webster Online Dictionary, at https://www.merriam-webster.com/dictionary/public. When an act is done "publicly," it is done "in a manner observable by or in a place accessible to the public." Merriam-Webster Online Dictionary, at https://www.merriam-webster.com/dictionary/publicly. Public acts are thus differentiated from private conduct, which is "intended for or restricted to the use of a particular" audience; when something occurs "in private," it by definition does not occur "openly or in public." See Merriam-Webster Online Dictionary, at https://www.merriam-webster.com/dictionary/private.
Though we did not directly quote these common definitions, this court recently discussed this public-versus-private distinction in City of Wichita v. Trotter , 58 Kan. App. 2d 781, 475 P.3d 365 (2020), rev. denied 312 Kan. 890 (2021). Trotter involved a violation of a Wichita ordinance requiring a license to run an entertainment establishment that was "open to the public." 58 Kan. App. 2d at 802, 475 P.3d 365. While the Wichita Municipal Code included definitions of various terms, the Code—like K.S.A. 2020 Supp. 21-5513(a)(2) —did not define what was meant by "public." 58 Kan. App. 2d at 805, 475 P.3d 365. But we nevertheless found, consistent with the common meaning of that term, that the Code's reference to "public" events intended to distinguish conduct requiring a license from private conduct, like family gatherings in a person's home. And we underscored that jurors commonly...
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