State v. Patterson

• Decision Date: 26 June 1998
• Docket Number: No. 79392,79392
• Citation: State v. Patterson, 963 P.2d 436, 25 Kan.App.2d 245 (Kan. App. 1998)
• Parties: STATE of Kansas, Appellee, v. Roger A. PATTERSON, Appellant.
• Court: Kansas Court of Appeals

Page 436

963 P.2d 436

25 Kan.App.2d 245

STATE of Kansas, Appellee, v.Roger A. PATTERSON, Appellant.

No. 79392.

Court of Appeals of Kansas.

June 26, 1998.

Rehearing Denied Sept. 14, 1998.

Syllabus by the Court

In a case where defendant was convicted of burglary and theft, which under the facts were found by the trial court to be "sexually motivated," application of the Kansas Sex Offender Registration Act is discussed.

Elizabeth Seale Cateforis, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for Appellant.

Doyle Baker, Assistant District Attorney, Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, for Appellee.

Before LEWIS, P.J., PIERRON, J., and JACK L. BURR, District Judge, Assigned.

PIERRON, Judge.

Roger A. Patterson appeals the trial court's decision that his convictions for burglary and theft were subject to the Kansas Sex Offender Registration Act (KSORA), K.S.A. 22-4901 et seq.

The facts of this case are undisputed.On April 28, 1997, Patterson entered a Brady plea to one count of burglary, K.S.A. 21-3715, one count of misdemeanor theft, K.S.A. 21-3701(a)(1), and one count of misdemeanor possession of marijuana, K.S.A.1996 Supp. 65-4162.Patterson was arrested on October 16, 1996, when his parole officer found him to be in possession of pornographic materials which were prohibited by his probation agreement.He had been previously convicted of burglary, multiple counts of theft, aggravated assault, and lewd and lascivious conduct.Although the facts are not completely developed in the record, some of these prior convictions involved the theft of women's clothing and public masturbation.

At the preliminary hearing, special enforcement officer Maureen Stanton testified she was called to Patterson's residence on October 16, 1996, by Patterson's parole officer, Brad Jones.Jones had received a call that Patterson had a minor in his home at the time.The officers were admitted to Patterson's home by Patterson's roommate and former girlfriend, Becky Thomas.Thomas consented to a search of the house.Patterson was found in the basement, where he consented to a search of his belongings.The officers then found a homemade videotape containing a recording of Patterson having sex with a young woman.(The woman was first thought to be a minor, but was later confirmed to be an adult.)Patterson was then arrested and he consented to a further search of his belongings.The officers opened a locked cabinet and found numerous other pornographic materials and 11 items of women's thong underwear.

Officer Stanton also testified there was a hole in the wall of the basement in which Patterson resided that led to the basement of the adjoining duplex.Thomas told the officers she thought the underwear belonged to the next-door neighbor, Christina Bowman.Bowman stated the underwear belonged to her, and she had noticed several items of her underwear missing from her home between April and October 1996.She also stated she had given Patterson and Thomas permission to enter her home without her presence on two separate occasions, but she never allowed them to disturb or see her clothing.

After the preliminary hearing, the State gave notice it would seek to have Patterson's crimes classified as "sexually motivated" under K.S.A. 22-4902(b)(12) in order to require Patterson to register as a sex offender in the event he was convicted.

Pursuant to a plea agreement, the State concurred with a downward durational departure sentence of 18 months for all three counts.At sentencing, Patterson requested that he be granted probation.He was given a downward durational departure sentence of 18 months for burglary, misdemeanor theft and misdemeanor possession of marijuana.He was denied probation.The district court also found:

"The possession of the pornographic materials are indicia of the state of mind of Mr. Patterson at the time.There's no question at all that the collection of panties that are normally worn by a member of the opposite sex would have a sexual connotation.The only issue is the sort of sexual connotation contemplated by the legislature in enacting the statute.The purpose of the statute is to protect people from sexual predators.That's why the requirement of the reporting is made.I will find under the facts of this case that the crime was sexually motivated."

Patterson filed a timely notice of appeal of the denial of his request for probation and the determination that his crimes were sexually motivated under K.S.A. 22-4901 et seq.

Patterson argues that this is a simple burglary/theft case and claims the trial court improperly relied upon evidence occurring after the crimes had been committed in making the sexual motivation ruling.

This appeal requires the court to construe the meaning of K.S.A. 22-4902(b)(12) and determine whether Patterson committed a sexually violent crime for which he must register with the State as a sex offender.This statute is part of the KSORA.

Interpretation of a statute is a question of law, over which this court has unlimited review.In re Tax Appeal of Boeing Co., 261 Kan. 508, 514, 930 P.2d 1366(1997).Furthermore, if we uphold K.S.A. 22-4902(b)(12), we must consider whether the trial court correctly determined that Patterson's crimes were sexually motivated.This is a question of fact.Rulings on questions of fact will be upheld on appeal if supported by substantial competent evidence.SeeTucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929(1993).

To ascertain whether Patterson committed a sexually violent crime, we must interpret the language of K.S.A. 22-4902(b)(12).Under this statute, Patterson is guilty of a sexually violent crime if he committed "any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated."K.S.A. 22-4902(b)(12).Under the statute, " 'sexually motivated' means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant's sexual gratification."K.S.A. 22-4902(b)(12).

The immediate problem in construing this statute is the broad language of the first sentence.Read literally, it states that any act which a factfinder determines to be sexually motivated beyond a reasonable doubt is a sexually violent crime.The statute in its operative part, therefore, appears to define all sexually motivated activity as a sexually violent crime.The application of a such a rule poses obvious difficulties, and while Patterson does not assert a constitutional argument against the statute based on vagueness or overbreadth, we must first determine the scope of K.S.A. 22-4902(b)(12) before we can evaluate whether there was substantial competent evidence to support the decision of the trial court that Patterson's crimes were sexually motivated.

Can K.S.A. 22-4902(b)(12), therefore, be rationally construed?It is a general rule that an appellate court must give effect to the plain and unambiguous language of a statute without determining in the opinion of the court what the law should be.State v. Reed, 23 Kan.App.2d 661, 663, 934 P.2d 157, rev. denied262 Kan. ----(1997).It is also the function of a court"to interpret a statute to give it the effect intended by the legislature."In re Application of Zivanovic, 261 Kan. 191, 192, 929 P.2d 1377(1996).In determining legislative intent, courts are not limited to the mere language of a statute.Courts can consider the circumstances surrounding the passage of a statute, its purpose, and the effect the statute may have under the various constructions posed by a particular case.SeeState v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612(1994).Moreover, if a statutory provision is vague or unclear, courts must look to related or surrounding provisions "with a view of reconciling and bringing them into a workable harmony and giving effect to the entire act if it is reasonably possible to do so."State v. Le, 260 Kan. 845, 847-48, 926 P.2d 638(1996).

These canons of statutory construction are to be considered in light of other cautionary rules.While courts must give effect to legislative intent and the plain language of a statute, courts may not " 'delete vital provisions or supply vital omissions in a statute.No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.' "(Emphasis in original.)Kenyon v. Kansas Power & Light Co., 254 Kan. 287, 292-93, 864 P.2d 1161(1993)(quotingHarris v. Shanahan, 192 Kan. 183, 196, 387 P.2d 771[1963] ).

The language of K.S.A. 22-4902(b)(12) is ambiguous.The first sentence of the statute criminalizes all acts which are found beyond a reasonable doubt to be sexually motivated.The second sentence clarifies the first to some degree, however.It states that if sexual gratification is the purpose of the underlying crime, then the crime is sexually motivated.In light of the second sentence, if the word "acts" in the first sentence means "crimes," then the statute is rather clear--i.e., any crime committed for the sexual gratification of the defendant is a sexually violent crime.But if the word "acts" in the first sentence does not mean "crimes," as Patterson contends, then it appears that a court must determine if any of the acts committed by the defendant during the commission of the crime were undertaken for his sexual gratification.Only then could the crime be called sexually motivated and ultimately sexually violent.

These ambiguities were noted with some concern in State v. Myers, 260 Kan. 669, 678-81, 923 P.2d 1024(1996).Writing for the majority, Justice Six stated: "Although all of the other categories [in K.S.A. 22-4902(b) ] are limited to felonies, the last category could apparently include any 'sexually motivated' act resulting...