State v. Ramos
| Decision Date | 16 January 1987 |
| Docket Number | No. 58774,58774 |
| Citation | 240 Kan. 485,731 P.2d 837 |
| Parties | STATE of Kansas, Appellee, v. Luis RAMOS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record is examined in a criminal action in which the defendant was convicted of aggravated indecent liberties with a child and misdemeanor battery, and it is held the trial court did not err (1) in holding that the State's evidence was sufficient to sustain the conviction; (2) in failing to give an instruction on aggravated sexual battery under K.S.A.1983 Supp. 21-3518; (3) in the sentence imposed; or (4) in giving its instruction on presumption of intent based on PIK Crim.2d 54.01.
Benjamin C. Wood, Chief Appellate Defender, argued the cause and was on brief, for appellant.
Jay C. Hinkel, Co. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief, for appellee.
This is a direct appeal by the defendant, Luis Ramos, from jury convictions of aggravated indecent liberties with a child (K.S.A.1983 Supp. 21-3504) and misdemeanor battery (K.S.A. 21-3412).
The facts in the case are not greatly in dispute and are as follows: About one week prior to June 16, 1984, the defendant, Luis Ramos, attempted to show a pornographic magazine to his daughter, age ten. Defendant was interrupted in this act by the arrival in the room of a younger child. Four or five days later, defendant called his daughter from the hall into a bedroom to massage his legs and scratch his head. Defendant was lying on the bed, partially clothed. As the child scratched his head, defendant raised up and placed a kiss on her mouth. Defendant had never kissed his daughter or his other children in this way before. The daughter reacted by drawing in her lips. Defendant then pulled his daughter onto the bed and got on top of her, but then acquiesced to his daughter's protests and allowed her to leave.
The daughter went downstairs to watch TV, followed by defendant about five minutes later. When the daughter approached defendant to report to him that her brothers had not done as they had been told, defendant hugged his daughter and took her by the arm and led her into the kitchen. In that room, he fondled and touched her buttocks and pubic area through her clothes. Again the child protested, and again defendant allowed her to leave.
The daughter stayed out of the house until her mother returned, and she immediately told her mother what had happened. The mother told her never to be in the house alone with the defendant. The child later told her aunt about the incident when she stayed overnight with her cousin on June 15-16, 1984.
In the early morning hours of June 16, 1984, defendant came home drunk and demanded sex from his wife. She refused, ran from the bedroom, and was pursued downstairs by defendant. He struck his wife between her stomach and breasts, which caused her to scream loudly enough that one of the children called the police. A call was also placed to the aunt keeping the daughter for the night. She arrived at defendant's home the same time as the police. The aunt reported the daughter's complaints about the sexual molestation by the defendant. Defendant was subsequently charged.
At the trial, the only evidence presented was the testimony of the State's witnesses. The defendant had asserted the defense of insanity but presented no expert witnesses or other evidence to support the defense. The jury found the defendant guilty as charged. The defendant appealed.
The first issue raised on the appeal is whether the State's evidence was sufficient to support defendant's conviction of aggravated indecent liberties with a child (K.S.A.1983 Supp. 21-3504). Defendant maintains that the evidence as to the touching and fondling of the child did not rise to the level of being "lewd" as required by K.S.A.1983 Supp. 21-3504. Defendant further argues that there was insufficient evidence of defendant's intent to arouse or satisfy his sexual desires.
In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Wise, 237 Kan. 117, 697 P.2d 1295 (1985); State v. Pink, 236 Kan. 715, 729, 696 P.2d 358 (1985).
The requirement of a "lewd touching or fondling" as an element of indecent liberties with a child was discussed in State v. Wells, 223 Kan. 94, 97-98, 573 P.2d 580 (1977). In that opinion, we construed the words "lewd fondling or touching" of the person of either the child or the offender to require the State to prove a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or to satisfy the sexual desires of either the child or the offender or both.
In this case the term "lewd" was defined in a manner consistent with that definition. The question of lewdness was an important element in the case which was argued to the jury by both attorneys. In our judgment, the evidentiary record before us is sufficient to show not only that the touching of the child by the defendant was lewd, but that it was done with the intent to arouse or satisfy defendant's sexual desires. It was undisputed that the defendant had attempted to show the child some pornographic pictures several days before the touching occurred. The defendant kissed the child while she was massaging his legs and scratching his head. He pulled her onto the bed. Shortly thereafter, he hugged her in the dining room and led her into the kitchen, where he fondled and touched her buttocks and pubic area. Viewed in the light most favorable to the prosecution, in our judgment there was sufficient evidence to sustain the conviction of aggravated indecent liberties with a child.
The next point raised on the appeal is that the trial court erred in failing to give an instruction on the lesser offense of aggravated sexual battery under K.S.A.1983 Supp. 21-3518. K.S.A.1985 Supp. 21-3107(3) requires a trial court to instruct on a lesser offense when there is evidence introduced to support a conviction of the lesser offense. State v. Hutton, 232 Kan. 545, 552, 657 P.2d 567 (1983). The defendant in this case was tried and convicted on the charge of aggravated indecent liberties with a child under K.S.A.1983 Supp. 21-3504, which provided in part as follows:
Indecent liberties with a child was defined in K.S.A.1983 Supp. 21-3503 as follows:
K.S.A.1983 Supp. 21-3518 provided for the crime of aggravated sexual battery as follows:
K.S.A.1983 Supp. 21-3517 defined sexual battery as follows:
Prior to July 1, 1983, the crime of aggravated indecent liberties with a child under K.S.A. 21-3504 was a class B felony. Aggravated sexual battery under K.S.A.1983 Supp. 21-3518 was enacted July 1, 1983, as a class D felony.
Although the elements of the two crimes were quite similar, the distinguishing factor was that aggravated indecent liberties with a child required a lewd fondling or touching by a parent, adoptive parent, stepparent, or grandparent of the child. This relationship was not required by the aggravated sexual battery statute. From a reading of these statutes, it is clear to us that the legislature intended to establish certain sex offenses applicable where family relationships were not involved. The legislature also intended that when lewd acts for sexual gratification were directed by a parent against his own child, it constituted a more serious offense than when the acts were perpetrated by a defendant against a child with whom he had no family relationship.
In this case, the defendant did not request an instruction on aggravated sexual battery under K.S.A.1983 Supp. 21-3518. The case was tried on the basis that the defendant was either guilty of aggravated indecent liberties with his own child or was not guilty of any offense. We have concluded that the trial court did not err in failing to give an instruction on aggravated sexual battery under 21-3518.
The next point raised is that the sentence of ten-to-fifty years imposed by the trial court constituted...
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