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State v. Johnson

April 27, 2007

STATE OF KANSAS, APPELLEE,
v.
BOBBY L. JOHNSON, APPELLANT.



Review of the judgment of the Court of Appeals in 34 Kan. App. 2d 612, 122 P.3d 397 (2005). Appeal from Shawnee district court; JAN W. LEUENBERGER, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed.

SYLLABUS BY THE COURT

1. If a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented. A judgment for an offense where the court is without jurisdiction to decide the issue is void.

2. Whether jurisdiction exists is a question of law over which this court exercises unlimited review.

3. K.S.A. 21-3504(a)(3)(B) prohibits soliciting a child to engage in lewd fondling or touching of the person of another, not the offender.

4. K.S.A. 21-3511(a), aggravated indecent solicitation of a child, requires proof of solicitation to commit or submit to an unlawful sexual act. When the unlawful sexual act is defined by the elements of K.S.A. 21-3504(a)(3)(A), then K.S.A. 21-3511(a) does not qualify as a lesser included offense of K.S.A. 21-3504(a)(3)(B), aggravated indecent liberties with a child.

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

A jury convicted Bobby L. Johnson of one count of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511(a). The Court of Appeals affirmed in State v. Johnson, 34 Kan. App. 2d 612, 122 P.3d 397 (2005).

We granted Johnson's petition for review pursuant to K.S.A. 20-3018(b), and he now raises three issues on appeal:

1. Did the district court have jurisdiction to convict Johnson of aggravated indecent solicitation of a child?

2. Did the district court err in refusing to admit a police report for the purpose of impeaching a witness?

3. Did the prosecutor's comments during closing argument deprive Johnson of a fair trial?

We reverse the conviction and remand with instructions to vacate the sentence because of error on issue one, which makes the remaining issues moot.

FACTS

In March 2002, the mother of D.M., date of birth December 12, 1997, and I.M., began dating the defendant, Bobby L. Johnson. She introduced her two children to Johnson several months later.

On or around July 2, 2002, Johnson drove 4-year-old D.M. and I.M. to Lake Shawnee to watch fireworks without their mother. Two days later D.M. told her mother that she did not want to go anywhere with Johnson because he did something "nasty." D.M. stated that when Johnson took her to the park, he made her sit in the truck while he "wiggled his weaner . . . until milk came out." According to D.M., Johnson offered her cotton candy if she would drink the milk, but she declined. Upon hearing D.M.'s story, her mother called the police.

D.M. informed the police that some of Johnson's "milk" had gotten on her clothing. Based on this information, police collected clothing that was possibly worn by D.M. at the time of the incident. KBI testing indicated that seminal fluid matching Johnson's DNA was present on D.M.'s shorts.

Johnson was charged with one count of aggravated indecent liberties with a child, i.e., lewd fondling, in violation of K.S.A. 21-3504(a)(3)(A). The charge was later replaced by the solicitation version of aggravated ...


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